2021 P Cr (PLP)

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

This criminal revision petition has been preferred against the Order dated 31.10.2018 ("impugned Order") passed by Sessions Judge, Mastung ("trial Court"), whereby an application under section 345, Cr.P.C. for acceptance of compromise jointly filed by the petitioner/convict Tariq Aziz and his mother/complainant Mst. Zubaida Bibi was dismissed.

2. Brief facts of the case are that the petitioner along with his father/co-convict Khudai Noor were convicted under sections 302(b), 34, P.P.C. and sentenced to suffer life imprisonment with compensation of Rs.200,000/- (rupees two hundred thousand only) each to legal heirs of deceased Mst. Samreen. The conviction recorded was in pursuance of registration of FIR bearing No.19 of 2019 lodged with Levies Thana, Dasht, District Mastung on 16.6.2014 by the complainant Mst. Zubaida Bibi. It was reported by the complainant that she was married to the co-convict Khudai Noor, some 15 years ago and out of wedlock three sons namely, Tariq Aziz. Irfan Aziz and Aamir Aziz and three daughters namely, Mst. Bibi Samreen, Bibi Ambreen and Bibi Afsa were born; subsequently she was divorced by her husband and thereafter she was residing with her mother and three daughters along with son namely Aamir Aziz; that after some time his son namely Irfan Aziz took them and they were living with him in Dasht area of District Mastung. On a fateful day, she along with her daughters were present at their house, when accused Khudai Noor (husband), Mitha Khan, Abdul Hameed (husband's brothers) and her sons Tariq Aziz and Aamir Aziz entered into the house, who were duly armed with deadly weapons, they detained the complainant in a room and made firing upon her daughter Mst. Samreen, who died on the spot. Thus, a criminal case was registered against the nominated accused persons.

3. After arrest of convicts Khudai Noor and Tariq Aziz, a challan was submitted against them before the learned Sessions Judge, Mastung, where the trial was conducted and on completion, both of them were convicted and sentenced in the above terms. The convicts preferred two separate Jail Appeals bearing Nos.47 and 172 of 2016 before this Court, which was dismissed by means of common judgment dated 02.10.2017. Only convict Tariq Aziz, assailed the judgment of this court before the Hon'ble Supreme Court of Pakistan in Criminal Jail Petition No.844 of 2017, but same was not pressed on merits, and therefore, dismissed as withdrawn vide order dated 09.01.2018. The petitioner/convict and the complainant submitted an application under section 345, Cr.P.C. before the Sessions Judge. Mastung along with compromise deed and affidavit of the complainant and prayed for acquittal of the petitioner after acceptance of compromise. The trial Court, vide impugned judgment dismissed the application with following observation:-

4. Mr. Ajmal Khan Lawon, Advocate, learned counsel for the petitioner inter alia contended that the compromise along with application under section 345, Cr.P.C. was rejected by the learned trial Court mainly on a strength that all the legal heirs of deceased Bibi Samreen were not associated in the compromise, while under the Muslim Personal Law except mother of the deceased Mst. Samreen her other siblings were not Wali of the deceased, therefore, compromise was wrongly rejected. However, in response to query posed by the court, learned counsel under took to produce the available sisters, who are living with their mother (complainant). At the time of final hearing of the petition, Mst. Zubaida (complainant) along with her daughters namely Mst. Bibi Ambreen and Bibi Afsa appeared before the court and on court's query confirmed the contents of compromise.

5. I have heard the learned counsel for the petitioner, the learned APG and have also gone through the record of the case. At the very outset, it is apt to reproduced section 305, P.P.C. which stipulates as under:-

305. Wali.- In case of Qatl, the wali shall be (a) the heirs of the victim, according to his personal law, but shall not include the accused or convicted in case of qatl-i-amd if committed in the name or on the pretext of honour, and (b) the Government, if there is no heir. The above quoted provision of law clearly depicts that "in case of a Qatl, the Wali shall be the heir of the victim, according to his/her personal law, but shall not include the accused or convicted in case of Qatl-i-amd, if committed in the name or on the pretext of honour" and its sub-clause (b) stipulates "the Government as Wali of the deceased if there is no heir". In the instant case, in view of above quoted provision of law the father of the deceased Mst. Samreen namely Khudai Noor was convicted along with petitioner Tariq Aziz for committing the murder of Mst. Bibi Samreen, (daughter and sister respectively). The learned trial Court has rejected the compromise on a strength that two other brothers of the deceased namely Irfan Aziz and Aamir Aziz along with her sisters Mst. Bibi Ambreen and Bibi Afsa were not included in the compromise nor they were produced before the court, and, therefore, it does not fulfill the pre-requisite of the compromise in case of Qatl-i -amd and same being vague and incomplete cannot be accepted, thus, rejected.

6. Unfortunately, it has escaped notice of the trial court that nominated accused Aamir Aziz along with two others are still on run and they being proclaimed offenders have not surrendered before the court. The complainant Mst. Zubaida Bibi stated before the court that her third son namely, Irfan Aziz is also missing despite the fact that he was not nominated in the FIR and his whereabouts are not known, therefore, she was not in a position to produce him before the court. Be that as it may, but the point to ponder is, Whether after excluding the father Khudai Noor being convict of murder of her daughter Mst. Bibi Samreen only complaint being mother of the deceased was her Wali? Otherwise, the other siblings of the deceased shall also fall in the category of Wali? In order to resolve the controversy and in view of the provision of section 305, P.P.C., reference can only be made to the personal law of the legal heirs and deceased. Under the Muhammadan Law only father and mother of an unmarried deceased possessed all rights of compromise with the accused on any of the terms permitted by law. The amount of Diyat, if any, to be paid by the accused or on behalf of the accused, has to be treated as property of the deceased, therefore, for purpose of distribution of said property among legal heirs of the deceased, all provisions of the Muslim Law of inheritance would be applicable to such property in the same manner as to be applied for all other properties of the deceased. In the present case the father being convict of murder of her daughter would be excluded from the array of legal heirs, and thus, the complainant being mother of the deceased was only surviving legal heir, therefore, no one was entitled to get anything from the estate of the deceased except her surviving mother, siblings of the deceased could inherit the property of the deceased, if none of the parents had been alive or in the instant case, if the mother was also not alive.

7. Similar controversy was resolved by the Hon'ble Supreme Court of Pakistan in the case of "Sartaj and others v. Mushtaq Ahmed and others" (2006 SCMR 1916). When in the said case the father entered into compromise for the death of his unmarried son, but the stepmother of the deceased and her brothers and sisters approached the Hon'ble Supreme Court of Pakistan on a pretext that father alone was not competent to enter into compromise without including them, in the array of legal heirs. The Hon'ble Supreme Court while resolving the controversy laid down a dictum, which states that:- "The only contrary opinion is of Hazarat Ibn-e- Abbas, as noted by the learned author in his treatise mentioned above. However, preponderance of opinion has been in favour of total exclusion of brothers and sisters by the father of the deceased. According to the said opinion, it is respectfully observed, the father inherits as a sharer with the mother which is not accepted by any renowned author of Islamic Law. In this case, undisputedly, the step mother is not an heir of the deceased and we have no doubt in our mind that the brothers and sisters of the deceased are also not the legal heirs of the deceased. We may also observe that there is no difference of opinion in the Sunni and Shia schools of thought as far as exclusion of brothers and sisters of the deceased by the father is concerned. The impugned judgment of the learned High Court was, therefore, based on mistaken assumption as to the correct legal position. It is, therefore, sustainable".

8. The identical proposition was resolved by the Hon'ble Justice Shafi Muhammadi in case of "Bashir Ahmed v. The State" (PLD 1995 Karachi 5) and by this court in case of "Niaz Muhammad v. The State" (PLD 1997 Quetta 17) and thereafter by the Hon'ble Lahore High Court in the case of "Ahmed Nawaz alias Gogi v. The State" (PLD 2007 Lahore 121), whereby while resolving the controversy the law was laid down in the following manner:- "A bare perusal of the above quoted section clearly states that the case of a qatl, the wali shall be the heirs of the victim, according to his personal law and the said provisions do not contemplate that the heirs of an heir of the victim shall also be wali of the victim. An heir of a person is understood to be a person who is entitled to inherit the property of the deceased at the time of his death. In the case in hand the inheritance of the victim automatically opened upon his death and at that time, the only heirs of the victim were his father and mother and thus the property of the deceased automatically devolved upon the said heirs of the victim. After devolving of the property of the victim upon the said heirs the inheritance of the victim had been exhausted and there was nothing left for anybody else to inherit from the victim. Keeping in view the spirit of the provisions of section 305(a), P.P.C. the heirs of a victim are surely different from the heirs of a wali of the victim. In the present case, the consanguine sisters were to inherit from the father of the victim namely Maqbool Ahmed and not from Mohsin Raza victim himself and thus they were the heirs of Maqbool Ahmed not of the victim namely Mohsin Raza. It is not disputed that the said consanguine sisters had not and could not inherit the property of Mohsin Raza as they were not his heirs at the time of his murder. What the consanguine sisters are claiming before us is a right to effect or refuse a compromise with the appellant which right they claim to have inherited from Mohsin Raza's father namely Maqbool Ahmed and they are not claiming any right to inherit the property of Mohsin Raza directly. According to the spirit and rationale of the provisions of section 305(a), P.P.C. a wali of the victim is the person who is entitled to inherit the property of the victim and the interpretation of the said provision cannot be stretched to include in the definition of wali a person who claims to have inherited he right of compromise possessed by the Wali. No legal provision has been produced nor any reference to the Islamic Jurisprudence has been made before us to support such a stretched interpretation of the provisions of section 305(a), P.P.C. A part from the spirit of the Qisas and Diyat laws is to quench the thirst of revenge of the immediate heirs of the victim and thus the right to enter into a compromise or otherwise cannot be extended to any other remote relative of the deceased who may not inherit the property from the deceased at the time of his murder but may at some subsequent stage become entitled to inherit some property from some heir of the deceased upon the death of such heir".

9. For the above reasons, in view of precedent law referred hereinabove, I am of the considered opinion that order passed by the trial court was not sustainable, therefore, it can be safely concluded that after exclusion of father being convict, only her mother namely Mst. Zubaida Bibi was sole surviving legal heir of her deceased daughter, while other siblings were not entitled to receive the estate of the deceased under the Muslim Personal Law mainly on a principle that any another legal heir(s) of the deceased is/are not entitled to become a heir of the deceased during life time of her/their predecessor. For the above reasons, the impugned order dated 31.10.2018 passed by the Sessions Judge, Mastung was set aside and compromise submitted by the complainant and the petition was accepted and the petitioner was therefore, directed to be released forthwith if not required in any other custody case vide short order dated 17.7.2019, and the above detailed discussion shall constitute reasoning to the short order announced earlier. Office to transmit a copy of this order to the Inspection Branch of this court for its onward transmission to all criminal courts of the province, for information and compliance. The petition stands accepted in the above terms. SA/131/Bal. Petition accepted.