1997SCMR1307 (PLP)

AJMAL MIAN, J. ‑‑‑By this common judgment, we intend to dispose of the above two petitions for leave in which notices were ordered to be issued on 30‑5‑1995 to the learned Attorney‑General for Pakistan, the learned Advocates -General of all the Provinces, M/s. Dr. Khalid Ranjha and Asif Saeed Khan Khosa as amicus curiae to assist the Court, and to the respondents.

2. The brief facts are that Shaukat Ali alias Shauka.‑(who is petitioner in Criminal Petition No. 140/L of 1994) was convicted and sentenced under section 302, P.P.C. to death with a fine of Rs.30,000 and in default to undergo three years' R.I. It was also ordered that if the amount of fine was recovered, half of it was to be paid to the legal heirs of the deceased. The other three co‑accused, namely, Rafaqat Ali, Sarfraz alias Goga and Allah Ditta, who were tried with the convict Shauka, were acquitted. Shaukat Ali alias Shauka filed an appeal in the Lahore High Court (Criminal Appeal No.245 of 1991), whereas the complainant, Sh. Muhammad Aslam (who is the petitioner in Criminal Petition No.137/L of 1994) filed Criminal Revision No.251 of 1991 against the acquittal of aforesaid co‑accused. The High Court altered the death sentence of Shaukat alias Shauka to life imprisonment and dismissed the aforementioned Criminal Revision filed by the complainant. Thereupon, the above two petitions for leave to appeal were filed.

3. Shaukat Ali alias Shauka filed an application before this Court alleging that the legal heirs of the deceased involved had compromised with him. The deceased Muhammad Islam had left behind the following legal heirs:‑‑‑ (i) Mst. Ramzan Bibi ‑ mother; (ii) Mst. Bilqees Bibi ‑ widow (iii) Mst. Ulfat Bibi ‑ daughter (15 years) (iv) Asad Butt ‑ son (11 years); (v) Mst. Naushaba ‑ daughter (10 years) (vi) Mst. Kiran ‑ daughter (7 years); (vii) Chand Butt ‑ son (5 years).

4. The matter was referred to the District and Sessions Judge, Gujrat, for report as to the genuineness of the above compromise. He recorded the statements of Mst. Ramzan Bibi, Mst. Bilqees Bibi, Fida Hussain and Syed Ibrar Hussain (marginal witnesses to the compromise deed), Muhammad Younis, Sub- Inspector, S.H.O. Police Station City, Jalalpur Jattan, and Mst. Ulfat Bibi, the daughter of the deceased. After that, the learned District and Sessions Judge, Gujrat, submitted his report to this Court stating therein that Mst. Ramzan Bibi, the mother of the deceased, had refused to compromise the case. However, the widow of the deceased for herself as well as on behalf of the aforesaid minor children had agreed to the compromise. The shares of Diyat amount of minors as well as of the widow amounting to Rs.2,03,000 was also deposited with the Assistant Registrar of this Court at Lahore.

5. When the above petitions for leave came up for hearing on 30‑5‑1995, the learned counsel for the convict Shaukat Ali alias Shauka referred to subsection (2) of section 309 of the Pakistan Penal Code, 1860 (Act XLV of 1860), hereinafter referred to as the P.P.C., and contended that on that analogy the legal heirs, who do not agree to the compromise, shall be entitled to their shares of Diyat.

6. The Bench of this Court which heard the aforementioned petitions was of the view that the said petitions involved the questions, as to whether the principle of section 309, P.P.C. could be applied to a case where punishment was awarded by way of Ta'zir, or whether the case under section 302, P.P.C. could be compounded if all the heirs did not agree to the compromise keeping in view the provision of section 345 of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Cr.P.C. In the above factual background, the aforesaid notices were ordered to be issued.

7. When the above petitions for leave came up for hearing on 5‑3‑1997, Dr. Khalid Ranjha had appeared in the capacity of Advocate‑General, Punjab. Mr. Raja Qureshi appeared as the Advocate‑General, Sindh. Both the learned Advocates‑General contended that under subsection (2) of section 309, P.P.C., it has been provided that where a victim has more than one Wali, any one of them may waive his right of Qisas and the proviso thereof provides that the Wali who does not waive his right of Qisas, shall be entitled to his share of Diyat. According to them, the above provision is also applicable where a Court awards sentence for a murder as Ta'zir in view of the provisions of section 338‑E, P.P.C. and section 345, Cr.P.C. Dr. Khalid Ranjha further contended that since the aforesaid provision of subsection (2) of section 309, P.P.C. is a beneficial provision for the convicts, its interpretation should be liberal as to include the sentence awarded for murder as Ta'zir particularly keeping in view that under clause (b) of section 302, P.P.C., the Court has power to award death sentence 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 under clause (c) thereof, the Court can award imprisonment of either description which may extend to twenty‑five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable. Messrs Raja Muhammad Ibrahim Satti and Hassan Ahmad Khan Kanwar supported the above arguments of Dr. Khalid Ranjha.

8. On the other hand, Mr. Asif Saeed Khan Khosa, who had appeared as amicus curiae, had urged that subsection (2) of section 309, P.P.C. could not be pressed into service where the Court awards sentence to an accused person for murder as Ta'zir. To reinforce his above submission, he referred to the judgments of this Court in the case of Safdar Ali and others v. The State PLD 1991 SC 202, in the case of Javaid Masih v. The State (1993 SCMR 1574) and in the case of Manzoor Hussain and 4 others v. The State (1994 SCMR 1327). He also highlighted the factum that the various High Courts have approached the above question differently by referring to the relevant case law. .

9. Before dealing with the above contentions of the learned counsel, it may be pertinent to mention that the Shariat Appellate Bench of this Court in the case of Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan (PLD 1989 SC 633) has declared the following provisions of the P.P.C. and Cr.P.C. in conflict with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah:‑‑‑

10. After the above judgment was rendered, in order to bring the provisions of the P.P.C. and Cr.P.C., in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, a number of Ordinances were issued from time to time, first being Ordinance No.VII of 1990 promulgated on 5‑9‑1990 and the last being Ordinance No.CXIII of 1996 promulgated on 11‑12‑1996. It may be pertinent to refer to some of the provisions of the aforesaid Ordinance. Section 299, P.P.C. gives the definitions of the terms "adult", "Arsh", "authorized medical officer", "Daman", "Diyat", "Government", "Ikrah‑e Tam", "Ikrah‑e‑Naqis", "minor", Qatl", "Qisas", "Tazir" and "Wali". It will suffice to reproduce the definitions of the terms "Diyat", "Qatl", "Qisas", "Tazir" and "Wali", which read as follows:‑‑‑ "Diyat" means the compensation specified in section 323 payable to the heirs of the victim; " "Qatl" means causing death of a person;" "Qisas" means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl‑i-amd and in exercise of the right of the victim or a Wali". 'Tazir" means punishment other than Qisas, Diyat, Arsh or Daman ;" "Wali" means a person entitled to claim Qisas;"

11. It may also be advantageous to reproduce amended sections 302, 305, 306, 307, 308, 309, 310, 311, 338‑E and 338‑F, which read as under:‑‑‑ "Section 302‑‑ Punishment of Qatl‑i‑Amd.‑‑Whoever commits Qatl‑e‑Amd shall, subject to the provisions of this Chapter be‑‑ (a) punished with death as qisas; or ' (b) punished with death for 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) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunctions of Islam the punishment of qisas is not applicable. Section 305‑‑ Wali.‑‑In case of Qatl‑i‑Amd, the wali shall be‑‑ (a) the heirs of the victim, according to his personal law; and (b) the Government, if there is no heir. Section 306‑ Qatl‑i‑Amd not liable to qisas.‑Qatil‑i‑Amd shall not be liable to Qisas in the following cases, namely:‑‑‑ (a) when an offender is a minor or insane Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to Qisas, with the intention of saving himself from Qisas, he shall not be exempted from Qisas; (b) when an offender causes death of his child or grandchild, howlow soever;and (c) when any wali of the victim is a direct descendant, howlowsoever, of the offender. Section 307‑‑ Cases in which Qisas for Qatl‑i‑Amd shall not be enforced.‑ Qisas for Qatl‑e‑Amd, shall not be enforced in the following cases, namely:‑‑‑ (a) when the offender dies before the enforcement of Qisas; (b) when any Wali voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and (c) when the right of Qisas devolves on the offender as a result of the death of the Wali of the victim, or on the person who has no right of Qisas against the offender. (i) A kills Z, the maternal uncle of his son B. Z has no other wali except D the wife of A. D. has the right of Qisas from A. But if D dies, the right of Qisas shall devolve on her son B who is also the son of the offender A. B camtot claim qisas against his father. Therefore, the Qisas cannot be enforced. (ii) B kills Z, the brother of her husband A. Z has no heir except A. Here A can claim Qisas from his wife B. But if A dies, the right of qisas shall devolve on his son D who is also son of B, the Qisas cannot be enforced against B. Section 308‑‑ Punishment in Qatl‑i‑Amd not liable to Qisas etc.‑‑(I) Where an offender guilty of Qatl‑i‑Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat: Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court: Provided further that, where at the time of committing Qatl‑i‑Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as ta'zir: Provided further that, where the qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as ta'zir. (2) Notwithstanding anything contained in subsection (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, at Ta' zir. "Waiver (Afw) of qisas in Oatl‑i‑Amd.‑‑(In 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 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 offender. Compounding of qisas (S 1h) () in Oatl‑i‑Amd.‑‑(1) In the case of Qatl‑i‑Amd, an adult sane wali may. at any time on accepting Badl‑i -Sulh, compound his right of qisas: . Provided that giving a female in marriage shall not be a valid Badl‑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 Badl‑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 Badl‑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) Badl‑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, Badl‑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. Section 311 Ta'zir after waiver or compounding of right of Oisas in Oatl‑i‑Amd.‑ Notwithstanding anything contained in section 309 or section 310, where all the Wali do not waive or compound the right of Qisas, or keeping in view the principle of Fasad‑fil‑arz the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term of which may extend to fourteen years as Ta'zir. Explanation.‑‑For the purpose of this section, the expression Fasad‑fil arz shall include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed Section 338‑E‑‑ Waiver or compounding of offences.‑‑(1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award ta'zir to the offender according to the nature of the offence. (2) 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. Section 338‑F: Interpretation.‑‑In the interpretation and application of the provisions of this Chapter, and in respect of matter ancillary to or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."

12. A perusal of the above‑quoted definition of the term "Diyat" given in clause (e) of section 299, P.P.C. indicates that it connotes the amount of compensation specified in section 323 payable to the heirs of the victim, whereas the word "Qatl" means causing death of a person. It may further be noticed that the word "Qisas" has been defined as means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl‑i‑Amd in exercise of the right of the victim or a Wali. It may also be pointed out that clause (1) of the above section gives the definition of the term "Ta'zir" by providing that it means punishment other than Qisas, Diyat, Atsh or Daman. Whereas "Wali" has been defined as means a person entitled to claim Qisas. It may also be noticed that section 302 of P.P.C. which provides punishment of Qatl‑i‑Amd lays down that whosoever commits Qatl‑i‑Amd shall, subject to the provisions of this Chapter be‑‑‑ (a) punished with death as qisas; or (b) punished with death for 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) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable. It may further be mentioned that section 305 defines the term "Wali" as‑‑ (a) the heirs of the victim, according to his personal law; and (b) the Government, if there is no heir. It may also be noticed that section 306 deals with "Qatl‑i‑Amd not liable to Qisas" by providing that Qatl‑i‑Amd shall not be liable to qisas in the following cases:‑‑‑ (a) when an offender is a minor or insane. The proviso to the above clause clarifies that where a person liable to qisas associates himself iii the commission of the offence with a person not liable to Qisas, with the intention of saving himself from Qisas, he shall not be exempted from Qisas.‑‑ (b) when an offender caused death of his child or grandchild, howlowsoever; and (c) when any wali of the victim is a direct descendant, howlowsoever, of the offender. It may further be noticed that section 307 provides the cases in which Qisas for Qatl‑i‑Amd shall not be enforced, namely: (a) when the offender dies before the enforcement of Qisas; (b) when any Wali voluntarily and without duress, to the satisfaction of the Court, waives his right of Qisas under section 309 or compounds under section 310; and (c) when the right of qisas devolves on the offender as a result of the death of the Wali of the victim, or on the person who has no right of Qisas against the offender. The two Illustrations given in the above section 307 explain the above section. They need not be repeated. It may also be pointed out that subsection (1) of section 308 deals with the punishment in Qatl‑i‑Amd not liable to qisas by providing that where an offender guilty of Qatl‑i‑Amd is riot liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat. It may be noticed that first proviso to the above subsection lays down that where the offender is minor or insane, diyat shall be payable either from his property or by such person as may be determined by the Court. Whereas second proviso to the above subsection provides that where at the time of committing Qatl‑i‑Amd the offender being a minor had attained sufficient maturity or being insane, had a lucid interval so as to be able to realize the consequences of his act, he may also be punished with imprisonment for either description for a term which may extend to fourteen years as Ta'zir. It may be pointed out that the third proviso to above subsection lays down that where the qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any wali other than the offender, and if there is no Wali other than the offender he shall be punished with imprisonment for either description for a term which may extend to fourteen years as Ta'zir. It may be highlighted that subsection (1) of section 309 deals with the Waiver (Afw) of Qisas in Qatl‑i‑Amd by providing that in the case of Qatl‑i‑Amd, and adult sane wali may, at any time without any compensation, waive his right of Qisas. However, proviso to the above subsection lays down that 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. Whereas subsection (2) thereof provides that where the victim has more than one Wali, any one of them may waive his right of Qisas. Proviso thereof provides that the wali who does not waive the right of Qisas shall be entitled to his share of Diyat. It may further be mentioned that subsection (3) thereof deals with the case where more than one victim is involved. It provides that 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. Whereas subsection (4) of the same covers the case where there is more than one offender by providing that the waiver of the right of Qisas of one offender shall not affect the right of Qisas against the other offender. It may further be observed that subsection (1) of section 310 deals with' the compounding of Qisas (Sulk) in Qatl‑i‑Amd by laying down that in case of qatl‑i‑amd, an adult sane wali may at any time on accepting Badal‑i‑Sulh. compound his right of qisas. However, the proviso to the above subsection excludes a female in marriage as a valid consideration for Badal‑i‑Sulh. Whereas subsection (2) thereof provides that where the Wali is a minor or insane, the Wali of such minor or insane Wali may compound the right of Qisas on behalf of such minor or insane Wali. Proviso to the same lays down that the value of Badl‑i‑Sulh shall not be less than the value of Diyat. It may further be mentioned that subsection (3) of the above section 310 provides that where the Government is the Wali, it may compound the right of Qisas. Proviso to the above subsection lays down that the value of Badl‑i‑Sulh shall not be less than the value of Diyat. It may also be stated that subsection (4) thereof provides that where the Badl‑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. It may further be mentioned that subsection (5) of above section lays down the mode of payment by providing that Badl‑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. It may be observed that Explanation to the above subsection provides that in this section Badl‑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 I the form of movable or immovable property. It may also be highlighted that section 311 empowers the Court by providing that‑notwithstanding anything contained in section 309 or section 310, where all the Wali do not waive or compound the right of Qisas or keeping m view the principle of Fasad‑fil‑arz, the Court may in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as Ta'zir. Explanation to the above section clarifies the scope of the expression "Fasad‑fil‑arz" by laying down that for the purpose of this section, the expression Fasad‑fil‑arz shall include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed. It may further be noticed that subsection (1) of section 338‑E lays down that subject to the provisions of this Chapter i.e. Chapter XVI and section 345 of the Code of Criminal Procedure, all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall mutatis mutandis apply to the waiver or compounding of such offences. The proviso to the above subsection provides that where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Ta'zir to the offender according to the nature of the offence. Whereas subsection (2) thereof lays down that all questions relating to waiver or compounding of an offence or award of punishment under section 310, whether before or after the passing of such sentence, shall be determined by the trial Court. However, proviso to the above subsection provides that where the offence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such question may be determined by the Appellate Court. It may also be stated that section 338‑F provides guidelines as to the interpretation of the various provisions of the above Chapter by laying down that in the interpretation and application of the provisions of the aforesaid Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

13. Having referred to the relevant provisions of the amended P.P.C., we may also observe that inter alia subsections (1) and (2) of section 345 of Cr.P.C., , were amended as to make the offences mentioned therein compoundable without and with the permission of the Court. It may be pointed out that under subsection (1) of section 345 of Cr.P.C., it is provided that the offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table. Whereas subsection (2) thereof lays down that the offences punishable under this section of the Pakistan Penal Code specified in the first two columns of the Table next following may with the permission of the Court before which any prosecution for such offences is pending be compounded by the persons mentioned in the third column. Whereas subsection (3) thereof provides that when any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in the like manner. It may further be mentioned that subsection (4) of the same lays down that where the person who would otherwise be competent to compound under this section is under the age of 18 years, or is an idiot or lunatic, any persons competent to contract on his behalf may with the permission of the Court compound such offence. Whereas subsection (5) thereof 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. Subsection (5‑A), which was incorporated by the Law Reforms Ordinance, 1972, provides that a High Court acting in exercise of its powers of revision under section 439 and a Court of Session so acting under section 439‑A may allow any person to compound any offence which he is competent to compound under this section. It may further be observed that subsection (6) thereof lays down that composition of an offence under this section shall have the effect of an acquittal of the accused (with whom the h offence has been compounded). The latter portion was incorporated by Law Reforms Ordinance, 1972. It may also be stated that subsection (7) of the same provides that no offence shall be compounded except as provided under this section.

14. The effect of the above amendments in subsections (1) and (2) of section 345 was inter alia to make offences under sections 302, 303, 308, 316, 319, 320, 322, 324, 334, 337, 337‑D, 337‑F, 337‑G, 337‑H, 337‑1, 337‑J, 337‑K, 337‑L, 337‑M, 337‑N, 338‑A and 338‑C compoundable by the legal heirs of the deceased or the person to whom hurt is caused etc., with the permission of the Court.

15. Reverting to the basic question involved in the present case, namely, whether the benefit of subsection (2) of section 309, P.P.C. can be extended to an accused person who has been awarded death sentence or imprisonment for life as Ta'zir and not as Qisas, it may be stated that the above question seems to stand concluded by this Court inter alia in two of the above three cited cases. In the case of Safdar Ali and another (supra), this Court made the following observations on the above question:‑‑‑ "In this case, three petitioners, though convicted under section 302, P.P.C. have been sentenced to life imprisonment. Section 310 provides for compounding of Qisas (Sulah) in Qatl‑i‑Amd and lays down that "in the case of Qatl‑i‑Amd, an adult sane Wali may, at any time on accepting Badl‑i‑Sulah compound his right of Qisas". Qisas is defined in clause (k) of section 299 as follows:‑‑‑ "(k) ' Qisas' means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl‑i‑Amd in exercise of the right of the victim or a Wali." Accordingly, the right of Qisas means the right of causing death of the convict if he has committed Qatl‑i‑Amd. In this case, as the petitioners have not been sentenced to death, but to life imprisonment, the question of the heirs of the victim compounding their right of Qisas does not arise. The present case, therefore, falls under the provisions of subsection (2) of section 345, as amended by the Criminal Law (Amendment) Ordinance, 1991. According to section 10 of the said Ordinance clause (b) of section 345 of the Cr.P.C., has been substituted as follows:‑‑‑ "(b) in subsection (2), in the table, in the second column, for the figures "302, 303, 304‑A, 305, 306, 307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338" and the entries thereto in the first and third columns the following shall be substituted, namely:‑‑‑ "Qatl‑i‑Amd 302 By the heirs of the victim

Subsection (2), as amended, now reads as follows:‑‑ "(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the person mentioned in the third column of that table." Whereas in the case of Manzoor Hussaina and others (supra), inter alia the following was concluded:‑‑‑ "We have anxiously considered the arguments of the learned counsel for the parties and have minutely gone through the record of the case. Admittedly, Mst. Sakina is the wife of Muhammad Siddique deceased and being his Shari heir falls within the definition of "Wali" and entitled to 'Afw' under section 309, P.P.C., and to compound the Qisas under section 310, P.P.C. According to her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the appellants in any way as all the appellants were tried, convicted and sentenced under Ta'zir and not Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be their sister cannot come to their rescue in any way. The trial Court has fairly dealt with this aspect of the case and we have reasons to differ with it."

16. Similar view was taken by the Shariat Appellate Bench of this Court in the case of Federation of Pakistan v. Gul Hassan Khan (supra), wherein Pir Muhammad Karam Shah, J, who wrote the leading opinion, quoted with approval the following observations from the book "(AL TASHRIH ALJANAI ALISLAMI)" written by renowned Egyptian jurist "(ABDUL KADIR AUDAH MARHOOM)",: Pir Muhammad Karam Shah, J. also quoted with approval the following extract from "MAROOF AL QURAN" (a Tafsir on Holy Qur'an) by "MOULANA MUFTI MUHAMMAD SHAFI". which deals with the question, what will happen if any of the Wali does not waive his right of Qisas:

17. Reference may also be made to the following extract from the book ISLAM KA FOJDARI KANOON by SAJID UR REHMAN KANDHLVE MA.

18. The above extract from " MOULANA MUFTI MUHAMMAD SHAFI "'s celebrated TAFSEER MARAF AL QURAN and the extract from the above book indicates that if the victim has more than one Wali and if any one of them waives his right, the right of Qisas cannot be enforced. The Wali who has not waived or has not entered into Badal‑e‑Sulh will be entitled to receive his share of Diyat subject to section 311, P.P.C., under which it has been provided that notwithstanding anything contained in section 309 or section 310, where all the Wali do not waive or compound the right of Qisas or keeping in view the principle of Fasad fil‑Arz, the Court may in its discretion having regard to the facts and circumstances of the case, punish an offender against whom right of Qisas has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as Ta'zir as pointed out hereinabove. It may further be observed that subsection (2) of section 309, P.P.C., quoted hereinabove and discussed is in line with the above extract from TAFSEER MARAF AL QURAN" by MOULANA MUFTI MUHAMMAD SHAFI as its proviso lays down that the Wali, who does not waive his right of Qisas, shall be entitled to his share of Diyat. there is no doubt that section 338‑E, P.P.C., provides that subject to the provisions of this Chapter and section 345 of Cr.P.C., all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall mutates mutandis apply to the waiver of compounding of such offences. The proviso to the same lays down that where offences have been waived or compounded, the Court may by its discretion having regard to the facts and circumstances of the case acquit or award Ta'zir to the offender according to the nature of the offence. The above section is to be interpreted in the light of the guideline for interpretation provided in section 338‑F, which enjoins that the Court while interpreting and applying the provisions of the Chapter in question of the P.P.C., and in respect of matters ancillary or akin thereto, shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In our view, this provision does not nullify the well‑settled proposition of law that in case where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal‑i‑Sulh. However, in view of the amendment in section 345(2), Cr.P.C.; the 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.

19. Mr. Asif Saeed Khan Khosa has referred to the case of Ghulam Hussain and another v. The State NLR 1993 Cr. 203, in which a Division Bench of the Lahore High Court held that in view of the fact that some of the Wali of deceased had granted Ufw to the appellant, the sentence of death could not be enforced against them but they would be liable to be punished with imprisonment extending up to 25 years by way of Ta'zir according to the Injunctions of Islam as evidenced by the provision of section 302(c), P.P.C. He has also referred to the case of Muratab Ali v. The State 1994 PCr.LJ 1413, to the case of Nisar Ahmad and 2 others v. The State 1994 P Cr.L.J. 1587 and to the case of Tariq Mehmood and another v. The State PLD 1992 Lahore

75. In the first case, some of the legal heirs of the deceased had not joined in the compromise. The High Court substituted sentence of death to that ten years' R.I., subject to the payment of Diyat to the legal heirs. The same view was taken in the above second case by the same Bench of the High Court. In the third case, a Division Bench of the Lahore High Court despite of the composition of murder and despite the waiver of Qisas by the Wali of the deceased, sentence of death imposed on the accused and sentence of imprisonment for life awarded to his co‑accused were set aside and each of them was punished to suffer five years' R.I., as envisaged by section 311, P.P.C. However, the convictions and sentences recorded against the accused under sections 353/34, 365/34 and 307/24, P.P.C., were maintained as they were not affected by the‑above composition and waiver.

20. Mr. Asif Saeed Khan Khosa has further referred to the case of Nazar Ali and another PLD 1992 Peshawar 176, to the case of Muhammad Ishaq v. The State PLD 1992 Peshawar 187 and to the case of Usman and another v. The State 1992 P Cr.LJ 1960. In the above first case, a learned Single Judge of the Peshawar High Court held that sections 309, 310 and 311; P.P.C., have no application to a murder case in which sentence has been awarded as Ta'zir, but the composition of the said offence under section 345, Cr.P.C., with the permission of the Court, would result in acquittal. In the aforesaid second case, a learned Single Judge of the Peshawar High Court held that for Oatl‑i‑Amd, the appellant could not be awarded punishment as Ta'zir as the offence was committed by him before the commencement of Ordinance No.VII of 1990 substituting section 331, P.P.C., which was not made applicable retrospectively. In the above third case, a learned Single Judge of the High Court of Sindh held that since the trial Court had granted the permission to compromise and also accepted the same, the only option left with the trial Court was to acquit the accused under section 345(6), Cr.P.C., and it had no power to convict the accused under section 311, P.P.C. ,

21. Then Mr. Khosa referred to the case of Azmat Ullah Khan v. The State 1993 P Cr.LJ 1220, in which a learned Single Judge of the Lahore High Court, while dismissing a criminal revision petition against the framing of the charge by the trial Court under section 302, P.P.C., repelled the contention of the learned counsel for the petitioner that as two of the legal heirs of the deceased had entered into a compromise, with the accused before the commencement of the trial, the trial Court should have framed the charge under section 311, P.P.C., and not under section 302, P.P.C. He has also referred to the case of Manzoor Ahmad alias Shami v. The State 1991 P CI.LJ 1480, in which application for compromise was not signed by the legal heirs of the deceased but was only signed by the complainant. A Division Bench of the Lahore High Court, while declining to accept the compromise, substituted life imprisonment in place of death sentence.

22. It may be observed that Mr. Asif Saeed Khan Khosa seems to be correct in contending that different superior Courts have approached the question of applicability of sections 309, 310 and 311, P.P.C., differently but this fact does not. in any way, affect the view which we are inclined to take. If an accused person has been awarded death sentence as Qisas, the same can only be undone under section 309 or section 310, P.P.C. However, if the sentence is awarded by way of Ta'zir, the Court has the power to grant permission to the legal heirs of the deceased and the accused to compound the offence under subsection (2) of section 345, Cr.P.C., which will result in acquittal under subsection (6) thereof if the compromise is accepted by the Court. In this regard it will be pertinent to refer to a recent judgment of this Court by a Full Bench in the case of Abdul Haque v. The State and another PLD 1996 SC 1, in which the question in issue was, as to whether the plea of sudden and grave provocation which was available to an accused under Exception I of the unamended section 300, P.P.C., could be invoked in case where a person has been sentenced to death as Qisas under clause (a) of the amended section 302, P.P.C. The answer was recorded in the negative. However, the conviction was altered from clause (a) to clause (b) of section 302, P.P.C., as the Court was of the view that the case was not proved as required under clause (a) of section

302. Since under clause (b) of section 302, P.P.C., the Court has choice to impose either death sentence or imprisonment for life as Ta'zir, it was held that in such a case grave and sudden provocation could be a mitigating circumstance warranting imposition of lesser sentence i.e. imprisonment for life as Ta'zir. It may be pointed out that if a case is covered by clause (a) of section 302, P.P.C., and death sentence has been awarded as Qisas, the Court cannot substitute the above sentence of death with that of imprisonment for life. In such a case the Wali of the deceased involved can either waive Qisas under section 309, P.P.C., or he can compound under section 310, P.P.C. It may be observed that any view contrary to what is stated above is not sustainable in law.

23. The upshot of the above discussion is that since the mother of the deceased had not joined the compromise and as the High Court has altered the death sentence into imprisonment for life which could be awarded as Ta'zir and not as Qisas, section 309(2), P.P.C., cannot be pressed into service. The above application for compromise is rejected. The office may fix the above petitions for leave for hearing.

24. It may be stated that it was lastly submitted by the learned counsel for the petitioner Shaukat Ali alias Shauka that now even the mother of the deceased has agreed to compromise. It will suffice to observe that the same is not before us. (Sd.) Ajmal Mian, J. (Sd.) Saiduzzaman Siddiqui, J. (Sd.) Fazal Ilahi Khan, J. I agree. I will append my note separately. (Sd.) Muhammad Bashir Khan Jehangir, J. MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑I have had the privilege and the benefit of going through the draft judgment proposed by my learned brother, Ajmal Mian, J. The factual background of the propositions arising out of the titled Criminal Miscellaneous Application under section 345, Cr.P.C., as amended by the Criminal Law (Second Amendment) Ordinance, 1990, seeking acquittal of the petitioner, namely, Shaukat Ali alias Shouka, whose conviction under section 302, P.P.C., had been maintained and his sentence of death converted into imprisonment for life has been succinctly narrated. The facts narrated may be read as part of my observations. I do not, therefore, deem it necessary to reiterate them. While respectfully subscribing to the conclusion arrived at in the draft judgment I have considered it proper to add my views on the following two legal issues:‑‑‑ (1) Where punishment is awarded by way of Tazir, can principle of section 309 of Pakistan Penal Code XLV of 1860 as amended by virtue of the Criminal Law (Second Amendment) Ordinance, 1990, apply, for compromise of the case? (2) Whether a case under section 302, P.P.C., as amended can be compounded if all the heirs do not agree to compromise? Sections 302 and 309, P.P.C., as amended are reproduced hereunder for ready reference:‑‑‑ "Section

302. Punishment of Qatl‑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) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the injunctions of Islam the punishment of Qisas is not applicable. Section

309. Waiver‑Afw of Qisas in qatl‑i‑amd.‑‑(1) In the case of qatl‑i‑amd an adult sane Wali may, at any time and without may compensation, waives 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, only 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 offender." Dr. Khalid Ranjha, learned Advocate‑General, Punjab, who was on notice raised no objection to the acceptance of the compromise and in support therefor he referred to the provision of subsection (2) of section 309, P.P.C., and its proviso which lays down that where a victim is survived by more than one 'Wali' any one of them may waive his right of Qisas (underlining is provided for emphasis) but the 'Wali' who does not waive his right aforesaid, shall be entitled to his share of 'Diyat'. On this premises he supported the plea for acceptance of the compromise on the ground that section 309(2) ante being beneficial in its operation should be liberally construed in favour of a convict. As has been noticed by my learned brother Ajmal Mian, J. Raja M. Ibrahim Satti and Mr. Hasan Ahmad Khan Kanwar have adopted the above contention of Dr. Khalid Ranjha. As against this Sardar Asif Saeed Khan Khosa, learned Advocate Supreme Court, who had rendered valuable assistance to us, referred to the case law since the enforcement of the Criminal Law (Second Amendment) Ordinance, 1990 till date on a number of aspects which the superior Courts of the country have been called upon to address. In this context he placed reliance on: (1) Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan (PLD 1989 SC 633), (2) Safdar Ali and others v. The State and another PLD 1991 SC 202, (3) Javaid Masih v. The State 1993 SCMR 1574, (4) Manzoor Hussain and 4 others v. The State 1994 SCMR 1327, (5) Ghulam Hussain and another v. The State NLR 1993 Crl. 203, (6) Tariq Mehmood and another v. The State PLD 1992 Lahore 75, (7) Nazar Ali and another v. The State PLD 1992 Peshawar 176, (8) Muhammad Ishaq v. The State PLD 1992 Peshawar 187, (9) Usman and another v. The State 1992 P Cr.LJ 1960, (10) Azmat Ullah Khan v. The State 1993 P Cr.LJ 1220, (11) Muratab Ali v. The State 1994 P Cr.LJ 1413, and (12) Nisar Ahmad and 2 others v. The State PCr.LJ 1587. My learned brother Ajmal Mian, J. in order to distinguish these precedents, has very ably deduced the ratio out of each one of them. Out of these cases, in the last mentioned case of Nisar Ahmad and 2 others v. The State (supra) the proposition in the case in hand had been dealt with briefly. The petitioner was not convicted for an offence of 'Qatl‑e‑Amd' liable to Qisas within the purview of section 302(a), P.P.C. He was of course convicted under section 302, P.P.C., as it held the field prior to its amendment under the Criminal Law (Second Amendment) Ordinance, 1990. In any case the High Court in exercise of its appellate jurisdiction has already reduced the sentence awarded to the petitioner to life imprisonment. In Safdar Ali and others v. The State and another PLD 1991 SC 202 in almost similar factual background this Court held as under:‑‑‑ "In this case, three petitioners, though convicted under section 302, P. P. C., have been sentenced to life imprisonment. Section 310 provides for compounding of Qisas (Sulah) in Qatl‑i‑Amd and lays down that "in the case of Qatl‑i‑Amd, an adult sane Wali may, at any time on accepting Badl‑i‑Sulah, compound his right of Qisas". Qisas is defined in clause (k) of section 299 as follows:‑‑‑ "(k) 'Qisas' means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl‑i‑Amd in exercise of the right of the victim or a Wali". Accordingly, the right of Qisas means the right of causing death of the convict if he has committed Qatl‑i‑Amd. In this case, as the petitioners have not been sentenced to death, but to life imprisonment, the question of the heirs of the victim compounding their right of Qisas does not arise. . The present case, therefore, falls under the provisions of subsection (2) of section 345, as amended by the Criminal Law (Amendment). Ordinance, 1991. According to section 10 of the said Ordinance clause (b) of section 345, of the Cr.P.C., has been substituted as follows:‑‑‑ (b) in subsection (2), in the table, in the second column, for the figures "302, 303, 304‑A, 305, 306, 307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338" and the entries relating thereto in the first and third columns the following shall be substituted. "Qatl‑i‑Amd 302 By the heirs of the victim

Subsection (2), as amended, now reads as follows:‑‑‑ "(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the person mentioned in' the third column of that table: Section Offence Whether the police may arrest without warrant or not. Whether a warrant or a summon shall ordinarily issue in the first instance Whether bailable or not Whether compoundable or not Punishment Under the Pakistan Penal code By what court triable 1 2 3 4 5 6 7 8 302 Qatl-i-Amd without warrant May arrest Warrant Not bailable Compoundable Qisas Or Death imprisonment Upto twenty Five years Court of Session. Again, notwithstanding the fact that the occurrence in this case ‑had taken place on 29‑6‑1990 while the Criminal Law (Second Amendment) Ordinance, 1990, was promulgated on 5‑9‑1990, (actually it came into effect on 12th of Rabi‑ul‑Awal, 1411 Hijri falling on 3‑10‑1990, its provisions could be invoked under section 338‑E read with section 338‑H which reads as under:‑‑‑ "338‑E. Waiver or compounding of ‑offence. ‑‑Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure 1898, all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences. " (Underlining is ours). "338‑H. Saving.‑‑(1) Nothing in this Chapter, except sections 309, 310 and 338‑E, shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990), or to the offences committed before such commencement. " It this view of the matter, the ratio deducible from the case of Safdar Ali (supra) is that waiver or the compounding of an offence in cases falling under section 309 (waiver‑‑Afw) of Qisas in Qatl‑i‑Amd and section 310 (Compounding of Qisas‑Sulah in Qatl‑i‑Amd) is possible even in those cases of Qatl‑i‑amd where the right of Qisas cannot be enforced because the sentence of death has not been imposed and the lesser sentence of imprisonment for. life under section 302, P.P.C., had been awarded in view of the provisions of section 345, Cr.P.C., as amended. From this stage onwards the precedent of Safdar Ali (supra) is distinguishable inasmuch as in that case not only that all the heirs of the deceased desired to compound the offence but a sum of Rs.1,71,000 was also paid to the heirs of the victim as Badal‑i‑Sulah. In the instant case, as it has been noted earlier, while the widow of the victim in person and as guardian of her minor children who are also his 'walis' have compounded the offence with the petitioner whereas the mother of the victim has declined to do. Again under Criminal Law (Third Amendment) Ordinance (VIII of 1990) which came into force on 12th Rabi‑ul‑Awal, 1411 Hijri, falling on 3‑10‑1990 under column (3) of subsection (2) of section 345, Cr.P.C., reproduced ante, inter alia, the offence punishable under section 302 of the P.P.C., with the permission of the Court before which any prosecution is pending or in view of subsection (5) of section 345, Cr.P.C., with leave of the (sic) "by the heirs of the victim". The crucial words are "by the heirs of the victim". By employing this phraseology the intendment of the legislature clearly appears to be that the composition of the offence aforesaid was made permissible. if all the heirs of the victim had consented. If the Legislature's intendment had been to allow compounding of the offences by anyone or more of the heirs of the victim there was nothing to prevent it to have used a different wording appropriate to express its intention. I would, therefore, approve the construction put on the amended section 345, Cr.P.C., by a learned Judge of a Division Bench of Lahore High Court in the case of Nisar Ahmad and 2 others (supra) 1994 P Cr.LJ 1587 wherein it was held: "It is true that only some of the heirs of Rehmat deceased have compounded the murder in question with the three appellants. Therefore, the acquittal cannot be claimed for Nisar appellant who stands convicted under section 302, P.P.C., and punished with death. The newly‑substituted provisions of section 311, P.P.C., as amended by Ordinance XII of 1993 envisage punishment of the offender by way of Tazir to a maximum term of 14 years' imprisonment if only some of the Walis of the deceased waive or compound the right of Qisas." In this case as noticed earlier the occurrence had taken place on 29‑6‑1990 before the enforcement of Criminal Law (Second Amendment) Ordinance. He could only be and had been convicted under section 302, P.P.C., as it held the field before the aforementioned amendments. Accordingly he was sentenced to death apart from payment of fine etc. On appeal, however, the High Court while maintaining his conviction, had commuted his death sentence, and awarded him imprisonment for life but did not interfere with the sentence of fine etc. Neither trial Court nor the High Court or for that matter even this Court could have resorted in this case to the provisions of the Criminal Law (Second Amendment) Ordinance, 1990 except amended sections 309 and 310 of the Penal Code.. Resultantly, award of punishment by way of ' Tazir' could not and had not been awarded in this case, the first proposition noted in para. l ante need not be answered one way or the other. Be that as it may and notwithstanding the fact that newly‑added section 345, Cr.P.C., is a procedural in effect, therefore, ordinarily it would have been applicable retrospectively. Nonetheless it has been made applicable under the Criminal Law (Third Amendment) Ordinance, 1990, with effect from 3‑10‑1990. By force of the newly‑inserted sections 338‑E and 338‑H of the Penal Code it is, therefore, doubtful if compounding of offence of 'murder' under section 345, Cr.P.C., as it stood prior to the amendment would legally be permissible. In any case as all the heirs of the victim excepting his mother in the case in hand have compromised with the victim, therefore, the case against the petitioner under section 302, P.P.C., can neither be compounded nor provisions of section 309(2), P.P.C., could possibly be pressed into service. I am, therefore, in respectful agreement with the conclusion arrived at by my learned brother Ajmal Mian, J. (Sd.) Muhammad Bashir Khan Jehangiri, J M.B.A./M‑3369/S Compromise application rejected.