1997 P Cr (PLP)

AMIR-UL-MULK MENGAL, J.

By this judgment we intend to dispose suo motu Revision Petition No.55 of 1994. Facts briefly stated are that on 8-9-1989 Jehan Zaib lodged a report with Sibi Police that he was sitting in the house of Muhammad Yaqub (deceased) when accused Mansoor Ali came into the room armed with a Klashnikov, who started firing on the inmates of the house. As a result of this firing Muhammad Yaqub, Mst. Zaib-un-Nisa, Mst. Hameeda, Mst. Sharifan and Mst. Fateh Khatoon all received bullet injuries and died on the spot; whereas Mst. Murad Bibi and complainant Jehan Zaib got serious bullet injuries and were shifted to the hospital for treatment. The police started investigation and arrested accused Mansoor who tried to abscond from the scene of occurrence and recovered the weapon of offence (Klashnikov) at his instance. Mewa Khan was stated to have allegedly harboured accused Mansoor Ali when he took him on motor-cycle after he committed the offence and concealed him in a jungle. It appears from the record that Mansoor Ali convict was nephew of Muhammad Yaqub deceased, who was a moneyed person but without any male issue. However, deceased Muhammad Yaqub had 3 daughters, one was a lady doctor, the second was under training for Engineering and 3rd daughter was a Headmistress in a school. The motive behind the offence was the property dispute between deceased Muhammad Yaqub and his brother Mehr Ali (father of the convict). Since Muhammad Yaqub had no male issue, therefore, the accused wiped off his entire family members including 3 daughters and one sister Mst. Fateh Khatoon as well as widow to grab the entire property of deceased Muhammad Yaqub. After completion of investigation challan was put up for trial before the Special Judge, Suppression of Terrorist Activities under sections 302/34 and 307/34, P.P.C. and under section 109, P.P.C. whereas Mewa Khan was charged under section 216, P.P.C. The charge was read over and the accused did not plead guilty. The prosecution started to produce its evidence. Mst. Murad Bibi was the-.first P.W. who was sister of Muhammad Yaqub and who also received bullet injuries in the incident, but she survived. She affirmed on oath and narrated the entire story, how Mansoor Ali came armed with a klashnikov and started firing on them in the room killing Muhammad Yaqub, Zaib-un-Nisa, Mst. Hameeda, Mst. Sharifan and Mst. Fateh Khatoon while injuring Mst. Murad Bibi and Jehan Zaib. It is pertinent to note that the accused persons did not cross-examine her on one pretext or the other till such time that she turned hostile. P.W.2 Haseena Begum supported the prosecution version. P.W.3 Muhammad Ashraf nephew of Muhammad Yaqub also affirmed on oath that he saw Mansoor Ali armed with a klashnikov committing the offence. Similarly the prosecution examined P.W.5 Abdul Sattar, P.W.6 Jehan Zaib injured in the incident, P.W.7 Muhammad Azim (recovery witness) and P.W.8 Nazir Ahmad Aftab, a Magistrate First Class who proved Exh.P.8/A, Exh.P.8/B and Exh.P.8/C the confessional statement of the accused and certificate issued by him. Besides them prosecution examined P.W.9 Gul Rehman, P.W.10 Abdul Razzaq. P.W.11 Munir Ahmad and P.W.12 Pir Muhammad. Thereafter the accused Mansoor Ali was examined under sections 342, Cr.P.C. as well as 340(2), Cr.P.C. The remaining accused persons were also examined and accused Mansoor Ali did not opt to produce any witness in defence. At this stage of trial the accused persons filed a compromise/waiver applications as under:-- (1) On behalf of deceased Muhammad Yaqub, Mst. Hameeda Begum, Mst. Sharifan and Mst. Fateh Khatoon the compromise was with Mst. Murad Bibi only surviving heir (who was sister of Muhammad Yaqub and aunt of remaining deceased and was also injured). (2) For deceased Mst. Zaib-un-Nisa the compromise was effected with Faiz Muhammad; (3) The third compromise was filed for accused Dawar Faiz as far as Jehan Zaib was concerned from the charge under section 302, P.P.C. but convicted only under section 311, P.P.C. These compromise deeds were accepted and accused Mansoor Ali was ordered to be convicted only under section 311 read with section 338-H, P.P.C. to undergo 10 years' R.I. in the murder cases. During hearing of Criminal Appeal No.46 of 1993 titled ' Mewa Khan v. The State' the entire evidence was perused and following orders were passed:-- "During arguments and perusal of the record it transpired that Special Case No.210 of 1992 decided by the learned Special Judge Suppression of Terrorist Activities, Balochistan, Quetta, Mansoor Ali son of Mehr Ali compromised the matter but convicted under section 311 read with 338-E, P.P.C. to undergo R.I. for 10 years. Besides, he has been awarded under section 307, P.P.C. to undergo 7 years' R.I. with fine of Rs.5,000 to be paid to Jehanzaib or in default to further suffer 6 months' R.I. Sentences were also ordered to run concurrently. Upon this we issued notice to learned Advocate-General, Mr. S.A.M. Quadri as well as Mr. M.A. Chishti, Advocate to assist us whether the sentences awarded to the convict in case where 5 persons have been killed is sufficient and legal. Today we have heard Mr. S.A.M. Quadri, Advocate as well as learned Advocate-General. The pertinent question for determination was whether this Court has jurisdiction to issue notice. After perusal of section 439, Cr.P.C. read with Article 203 of the Constitution of Islamic Republic of Pakistan we are satisfied that this Court has the jurisdiction, if it is satisfied with the material before it on record, to issue notice. As such in exercise of our powers under the aforementioned sections/provisions of law we issue notice to Mansoor Ali convict as to why sentences awarded to him may not be enhanced or to run consecutively/separately. We are fortified in our view by reported judgment of this Court in PLD 1987 Quetta 51." Thus suo motu revision was registered and Mr. Raja M. Afsar, Mr. M.A. Chishti were appointed as amicus curiae. Notice was also given to Additional Advocate-General and thereafter several notices were given to convict Mansoor Ali. But despite service, he did not engage a counsel till he was given notice that if he failed to engage a counsel of his own choice then the Court had no other option but to appoint a counsel for him. Mr. Ehsanul Haq was appointed his counsel who had been appearing on his behalf in the trial Court and then Mansoor Ali also gave his consent upon Ehsanul Haq. Another important aspect for taking suo motu action was that Mr. M.A. Chishti, Advocate and Additional Advocate-General, Balochistan while appearing before us in case of Mewa Khan pointed out that Special Judge Suppression of Terrorist Activities, Balochistan, Quetta while deciding Special Case No.210 of 1992 made observations which are in contravention of Muhammadan Law by declaring the convict as the person to usurp or to inherit the property of the deceased whom he had killed: These observations, according to learned Additional Advocate-General as well as Mr. M.A. Chishti were not warranted in the peculiar circumstances of the case, therefore, we issued notice and took cognizance in our suo motu jurisdiction. However, in this suo motu revision we are not concerned with other accused persons except Mansoor Ali who was charged for murdering 5 persons as mentioned hereinabove. According to observations made in the judgment by the trial Court the cross-examination of Mst. Murad Bibi who fully implicated the accused with commission of 5 murders was hopelessly delayed by the defence till such time that she was shaken for unknown reasons. The said observations are hereby reproduced:-- "I may recall that in her examination-in-chief implicated fully the accused persons with the murders ' as well as injuring her and Jehan Zaib with a klashnikov on 17th July, 1990. Then it seems from the record, that this case was adjourned on one pretext or the other at the instance of the defence counsel' for cross-examination, which could be done only on 6th October, 1990, wherein she was shaken, may be due to the reasons unknown to us, but the compromise on the face of it has been effected." Similarly at page 11 of the judgment the following observations as regards grabbing the entire property after wiping the whole family members were made as under:-- "The motive behind this offence has been fulfilled as deceased Muhammad Yaqoob's whole family has been wiped away for ever, and the property left will be usurped by the accused persons directly or indirectly, in one way or the other." Thus from the circumstances it appears that the accused killed his real uncle and his entire family for the sole purpose of getting their property. Lengthy arguments were addressed by learned amicus curiae as well as Additional Advocate-General on the question of exercise of power under suo motu revision jurisdiction. They were almost unanimous on the point that this Court has ample powers to call for and examine record of any proceedings pending before any inferior criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. It was also argued that since an appeal titled as ' Mewa Khan v. The State' was filed hence need was felt to call for record of the trial Court in order to examine the legality or propriety of the proceedings as well as the order/judgment passed by learned Special Judge, Suppression of Terrorist Activities, Balochistan which is a Criminal Court. Similarly Mr. Ehsanul Haq, learned counsel for convict Mansoor Ali also opined that the entire question is open before the Court after taking upon itself to exercise suo motu jurisdiction. He, therefore, argued that the sentence awarded to Mansoor Ali to suffer R.I. for 10 years as Tazir under section 311 read with section 338-E, P.P.C. can be set aside after the Court is satisfied; that the sole legal heir Mst. Murad Bibi, while exercising her right of waiver had pardoned the convict. Thus as far as exercise of suo motu revisional jurisdiction, is concerned, there is no cavil that a Division Bench of this Court has jurisdiction to call for record of a particular case in order to find the propriety or legality of the order passed or judgment made. Now we proceed to dilate upon the important legal questions which arise for determination in this petition as under:-- (1) Whether compromise with Mst. Murad Bibi was validly made and lawfully accepted? (2) Whether as observed by learned trial Court, the convict responsible for murdering 5 of his relatives was entitled to right of inheritance of the victims' property? Dilating upon the second question first suffice to observe that a person committing homicide is excluded from inheriting the property of the victim. Under principles of Muslim Law of Inheritance one of the bar to inherit the property is homicide. This principle is based on Hadith In his Treatise, Dr. Tanzil-ur-Rehman on Islamic Laws of Hudood, Qisas, Diyat at page 344 (Part II) mentions this fact as under:-- Besides out of several authorities on the point, PLD 1981 Azad J&K 49 can be conveniently quoted in support thereof. It is thus concluded that the convict who intended to grab the property of his real uncle and cousins is deprived under Muslim Law of inheritance to inherit their property. Observations by the trial Court made to said effect are, therefore, not tenable in law. Now attending to the main issue whether compromise with Mst. Murad Bibi, an old lady who was injured in the incident and who entered the witness- box to implicate Mansoor Ali for committing murder of 5 persons later on waived her right of Qisas, has been validly made and lawfully accepted. For proper appreciation of the proposition we may take benefit from judgment as reported in PLD 1991 Lahore 317 Wherein the history of the Criminal Law (Amendment) Ordinance was traced. It was noted that as a result of the judgment of Shariat Appellate Bench of the Supreme Court, dated 5-7-1989 (PLD 1989 SC 633) the President of Pakistan was pleased to promulgate Criminal Law (Amendment) Ordinance, 1990 (Ordinance IV of 1990) wherein in sections 54, 55 of the Pakistan Penal Code and section 345 of Code of Criminal Procedure amendments were introduced and section 402-C was added to the Criminal Procedure Code and the Second Schedule thereof was also amended accordingly. Thus, section 345, Cr.P.C., which would be relevant for the disposal of present petition was amended whereby inter alia the heirs of the victim were given right to compound the offence of murder. Similarly on 5th of September, 1990 the Criminal Law (Second Amendment)' Ordinance, 1990 (Ordinance VII of 1990) was promulgated by the President of Pakistan and thus for the offence of murder and hurt punishment as provided in Sharia were brought in conformity with the Injunctions of Islam. Sections 53, 299 to 338 of Pakistan Penal Code were substituted while sections 337, 338 and 381 of the Code of Criminal Procedure were amended to the effect that the sentence of death shall not be executed if the heirs of the victim pardon the victim of enter into a compromise even at the last moment prior to execution of sentence. The Ordinance VIII of 1990 (i.e. Criminal Law (Third Amendment) Ordinance was promulgated where section 345, Cr.P.C. was also amended. Besides this brief history, the law as it emerges now contains provisions of waiver (Afw of Qisas in Qatl-i-Amd) (section 309) and compounding of Qisas (Sulh) in Qatl-i-Amd (section 310). However, the modus operandi is mentioned in section 338-E and section 311, P.P.C. For the sake of convenience section 338-E and section 311, P.P.C. are reproduced below:-- "338-E. Waiver or compounding of offences.

Subject to the provisions of this Chapter and notwithstanding anything contained in 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 offence: 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. 311 Ta'zir after waiver or compounding of right of Qisas in Qatl-i-Amd.-- Notwithstanding anything contained in section 309 or section 310 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 ten years as Ta'zir: Provided that, the Court may punish an offender who is previous convict, habitual or professional criminal, with imprisonment of either description for a term which may extend to fourteen years as Ta'zir." The record was called for in order to peruse the nature of compromise or waiver allegedly arrived at by the sole legal heir namely Mst. Murad Bibi of the 5 deceased persons. It appears that she was injured in the incident whereas her real brother Yaqub was killed alongwith her 3 daughters and his wife. In order to determine whether the learned trial Court passed proper orders on the affidavit filed by the sole surviving legal heirs Mst. Murad Bibi, two important features of the case come to lime light, first the factual aspect and the second legal aspect. Attending to the factual aspect it is revealed from the record that a "compromise for" as prescribed by this Court has been filed but it neither contains the signatures nor thumb-impression of Mst. Murad Bibi rather it is signed by convict Mansoor Ali alone (underlining is ours). However, an affidavit has been attached with it, allegedly sworn by Mst. Murad Bibi and attested only by an Oath Commissioner in which she has stated to have forgiven the accused persons without receiving any compensation but in the name of Almighty Allah. Thus, the compromise form is not signed by Mst. Murad Bibi. On the affidavit, however, we found her thumb-impression. Besides there is an application filed by complainant Jehan Zaib (injured) and who is also related to the parties, which was submitted to the trial Court herein it was stated that Mst. Murad Bibi has lost her senses and became insane and thus become incapable to be Wali of the victims. From perusal of record we did not find any order passed on this application. As to legal aspect, bare perusal of judgment would indicate that in fact the learned trial Judge was not satisfied with compromise but he accepted it simply because he thought that as and when compromise is filed it must be accepted. This conclusion is drawn on the basis of following observations made in the judgment delivered by the trial Court:-- "The compromise for the deceased Zaib-un-Nisa with Faiz Muhammad is also a dubious character, because, the son of Faiz Muhammad -- Dawar Faiz was a co-accused in this very case but on the face of it, the compromise was effected. Now I would revert to the special circumstances of the case. Legally speaking compromise is generally effected with the legal heirs of the deceased persons, primarily that the bad blood between the parties is to be eradicated, and the parties are given a chance to promote peace between them and develop good relations. Secondly the compromise is effected with the spirit, that the legal heirs be compensated by the accused party being some sort of consolation. Both the conditions are not applicable to the present case neither any of the deceased family have been left to develop good relations with the accused, nor any compensation has been given to Murad Bibi, who is equally related to deceased Muhammad Yaqoob and accused Mehar Ali, and accused Mansoor. The motive behind this offence has been fulfilled as deceased Muhammad Yaqoob's whole family has been wiped away for ever, and the property left will be usurped by the accused persons directly or indirectly, in one way or the other. It is perhaps such circumstances which have pr8vailed upon the Legislators when they have introduced section 311, P.P.C. read with section 338-E, P.P.C. wherein although Qisas has been waived due to the compromise, but this accused has committed such a heinous offence, cold-blooded, premeditated and ultimately have fulfilled the motive behind the offence, wiping out the whole family of deceased Muhammad Yaqoob, that he must be punished under Ta'zir. " The question would arise whether any compromise or waiver would be effective and binding upon the Court and the Court had no discretion in the matter but to accept the compromise or waiver as and when it is filed. It may be observed that under the law as is prevalent now comprising of section 345, Cr.P.C. read with sections 309 and 310, P.P.C. the legal heirs of the deceased/victim are entitled to compromise the offence or to waive the right of Qisas but obviously this right can be exercised only when the Wali is adult as well as sane. In the instant case an application has been filed that Mst. Murad Bibi has lost her senses and has become insane. The course open to the learned trial Judge was to dispose of this application in either way. The best possible way was to refer Mst. Murad Bibi to a Medical Board in order to determine whether she is sane or insane. The order on waiver application could only be passed after receipt of such report by the Medical Board in view of the application of insanity filed by the complainant. The learned trial Court did not refer Mst. Murad Bibi to any Medical Board, thus the application remained undisposed. We are, therefore, of the firm view that Mansoor Ali could not have been acquitted of the charge under section 302, P.P.C. for committing murder of five persons without first determining whether sole surviving legal heir Mst. Murad Bibi was sane or insane. Her own statement has not been recorded as regards waiver and only an affidavit which has been attested by an Oath Commissioner and not attested by District Magistrate or M.P.A. of the area as is prevalent procedure in cases of compromise or waiver has been accepted. On this basis alone the judgment is not sustainable in law because sanity of Mst. Murad Bibi the sole legal heir competent to compound or waive the right of Qisas has been challenged. (Although Mehar Ali is the real brother of the deceased but he was involved in this case and challaned, therefore, he lost his right of compromise or waiver). It may further be observed that under section 345, Cr.P.C. the compounding of offence is always with the permission of the Court before which any prosecution for such offence is pending. Section 345(2), Cr.P.C. is quite clear on the point. Even otherwise it is question of common legal practice that the Court must satisfy itself about the voluntariness or validity of right of waiver or compounding. In certain cases by duress or coercion the legal heirs are some times pressurized to compound the offence or waive right of Qisas against influential accused. In such event it is trial Court to satisfy the voluntariness of exercise of right of waiver or of compounding. It is but intrinsic because, in other words, section 309 or section 310, P.P.C. may be misused. We have already stated that the learned trial Court has reservations in its mind about the compounding of offence as observed by it in the judgment not only once but at different places of the judgment. Still the trial Court accepted the affidavit and ordered acquittal merely because the same had been filed. This cannot be the object of section 309 or section 310, P.P.C. However, in cases where the legal heirs of the victim voluntarily enter into a compromise or exercise right of waiver for good relations of the remaining family members or of the parties or for any other lawful object, the same shall have to be accepted. Yet another important aspect is that the Court is not bound in all circumstances to accept a right of compromise as was done in the instant case. It was accepted merely because, the Court observed that "on the face of it that compromise has been effected". From perusal of judgment it seems that the trial Court had not pragmatically or objectively applied its mind on the facts and circumstances of the case. So much so that the Court failed to make a distinction between section 309 and section 310, P.P.C. i.e. the right of compounding of Qisas (Sulh) or right of waiver or compounding. The nature of the affidavit filed by Mst. Murad Bibi is also confusing. It is simultaneously compounding as well as waiver. In any case the Court has to make observations whether right has been waived or it has been compounded. The perusal of judgment indicates nowhere such a distinction. However, the Court has stated that the compromise is accepted although there is no compromise filed. In other words to be more precise and technical, the Court did not accept the right of waiver but accepted compounding of the offence. The net conclusion would be that the proceedings were not properly conducted by the trial Court as such. Besides we find sufficient force in "the argument of learned Additional Advocate-General that in case the only surviving heir is insane then it is the State which becomes the Wali of the victim. However, since the same was not determined by the trial Court, therefore, at revisional stage it is difficult for us to say whether Mst. Murad Bibi was sane or insane at the time of filing of affidavit to waive her right of Qisas. From the above discussion we have come to the conclusion that acceptance of so-called waiver by Mst. Murad Bibi was illegal and thus untenable in law. The impugned judgment to the extent of Mansoor All's acquittal under section 302, P.P.C. is illegal and not sustainable in law, as such the same is set aside. Mr. Ehsanul Haque appearing on behalf of convict Mansoor Ali while relying on PLD 1991 SC 202 contended that after acceptance of compromise the only course left with the trial Court was to acquit the accused person. This question hardly requires any determination because we have declared as illegal the acceptance of so-called compromise/waiver. However, we have perused the said judgment and with respect we may observe that said judgment is not applicable in the present case, firstly because, in the cited case, the legal heirs of the victim after receipt of compensation compounded the offence, which was accepted. In the instant case it is not a case of compounding, of offence but an exercise of right of waiver allegedly exercised by Mst. Murad Bibi. Secondly, I about Mst. Murad Bibi an application has been made by complainant that she is insane. Thirdly, the compromise form is not signed by Mst. Murad Bibi. Such facts were not found in PLD 1991 SC 202, therefore, the ratio decidendi of the same shall not apply in the present case. As to the submission of Mr. Ehsan that after acceptance 'of waiver Mansoor A1i could not have been convicted for Ta'zir. This question is now open to the trial Court and section 311 read with section 338, P.P.C. is quite clear that Court can pass such sentence keeping in view the circumstances of the case. It may be clarified that Court has also convicted Mansoor Ali under section 307, P.P.C. for inflicting injuries with klashnikov to complainant Jehan Zaib who did not compound the offence. Charge was proved on the basis of overwhelming evidence of prosecution as well as confessional statement of Mansoor Ali. Mansoor Ali has not filed any appeal challenging his conviction under section

307. P.P.C. He was thus awarded sentence of 7 years' R.I. with a fine of Rs.5,000 to be paid to injured Jehan Zaib or in default to undergo another 6 months' simple imprisonment. This conviction has not been challenged and we do not find any illegality in the same. Thus conviction under section 307, P.P.C. of Mansoor Ali would remain intact and run independently. However, we set aside the judgment to the extent of acceptance of right of waiver in 5 murders as Jehan Zaib complainant who is equally related to deceased persons has specifically alleged that Mst. Murad Bibi has lost her sanity, therefore, she was incompetent to exercise her right of waiver. Resultantly the case of murders is remanded to Special Judge, Suppression of Terrorist Activities, Balochistan to proceed in accordance with law by referring Mst. Murad Bibi to Medical Board in order to find out whether she is sane or insane under his own supervision. Further proceedings be drawn in accordance with law. In case the Medical Board holds that Mst. Murad Bibi was insane, the trial Court after hearing the parties shall pronounce judgment on the available evidence on record, and in accordance with law. Consequently the case of 5 murders allegedly committed by Mansoor Ali are remanded to the Special Judge, Suppression of Terrorist Activities, Balochistan, at Quetta for disposing of the same on the available evidence if it was found that Mst. Murad Bibi is insane by the Medical Board. Record be immediately returned and expeditious disposal is expected from the trial Judge of this case. Petition is disposed of in the aforesaid terms N.H.Q./588/Q Case remanded