1994 PLP 1622 (SCMR)

SALEEM AKHTAR, J.‑‑‑Criminal Petition No. 502‑L of 1993 filed by Mst. Bushra and others challenging the legality of the judgment passed by the learned Judges of the High Court and the Jail Petition filed by Muhammad Yasin will be disposed of by this order.

2. Muhammad Yasin was charged of committing murder of his brother Muhammad Yamin and mother. The learned trial Court sentenced him to death and in each case he was also fined Rs.20,000, half of which was payable to the heirs of the each deceased and in default he was to suffer R.I. for four years. The learned Judges, however, refused to confirm the death sentence, but maintained the sentence of fine in the following manner:‑‑ "The learned trial Court had rightly convicted and sentenced the appellant. We, however, would not confirm the sentences of death and we convert it to the sentences of life imprisonment in each case, the reason being that Mst. Afsari sister of the appellant and one of heirs of both the deceased and Bashir Ahmed, nephew of Mst. Azizan deceased and paternal‑cousin of Yamin deceased and heir as residuary, had stated in this Court to have waived their right of Qisas and Diyyat for the sake 'of Allah under section 309, P.P.C. We, however, maintain the sentences of fine of Rs.20,000 for loch murder which if recovered shall be payable to all the heirs of both the deceased except Mst. Afsari and Bashir Ahmed and in default of payment of fines in each case the appellant shall suffer further imprisonment of 4 years. All the sentences shall run concurrently and the benefit of section 382‑B, Cr.P.C. shall be admissible." Petitioner No. 1 is the widow of deceased Muhammad Yamin while petitioners Nos. 2‑‑6 are the sons and daughters of Asghar Ali. They have challenged the impugned judgment on the ground that there was no mitigating circumstance to impose lesser sentence. It has also been contended that a sister and a cousin, in the presence of maternal‑uncle of Muhammad Yamin deceased and real brother of Mst. Azizan deceased, could not under law be termed as the sole Walis. It has been contended that some of the heirs, if considered Walis, could not waive the right of Qisas and Diyyat on behalf of other Walis. The questions raised inter alia require consideration' as they are of general legal importance. Leave is granted in Cr. P. No. 502‑L/1993. Muhammad Yasin has also filed petition through jail which is barred B by nine days. We grant leave to appraise the evidence subject to limitation. M.BA./B‑345/S Leave granted.