2005 PLP 1163 (YLR)

Muhammad Yar son of Mehdi Khan was tried in case F.I.R. No.86, dated 21-7-1998, registered at Police Station Taman, Tehsil Talagang, District Chakwal, for offences under sections 302, 337-F(iv), P.P.C., and found guilty by the learned Sessions Judge, Chakwal, of the under-mentioned offences and vide judgment, dated 22-10-1999 sentenced as under:-- (i) under section 452, P.P.C. to 7 years R.I. with a fine of Rs.50,000 or in default of payment whereof, to undergo further R.I. for a period of one year; (ii) under section 302, P.P.C., to death with a fine of Rs.1 lac., on two counts for causing Qatl-I-Amd of Mst. Kalsoom Begum alias Anaran and Mst. Mulakh Bano. In default of payment of fine, undergo R.I. for five years on each count; out of the amount of fine imposed under sections 452 and 302, P.P.C., if recovered, Rs.2 lacs was to be paid to the complainant as compensation; (iii) under section 337-F(iv), P.P.C. for causing injury of Noor Muhammad P.W. to three years. R.I. with Daman of Rs.5000, or in default of payment of the same, undergo S.I. till such time the amount of Daman is paid. The convict challenged his convictions and sentences by filing Criminal Appeal No.234 of 1999.

2. During pendency of the aforesaid appeal, the instant application was moved by the appellant contending therein that the matter has been settled and compromised between him and the legal heirs of both the deceased ladies. Vide order, dated 26-3-2001, the Sessions Judge, Chakwal, was directed to verify the alleged compromise between the parties and submit report within a period of one month. The needful has been done by the Sessions Judge, who has submitted the requisite report stating that, In nut-shell, as regards the murder of Mst. Kalsoom, only one Wali, Muhammad Sher as the husband had waived his right of Walis, whereas, the other Walies, i.e. mother and the collaterals namely Muhammad Zaman, Mst. Karam Noor and Mst. Sunaran had not waived their right of Qisas . Mst. Kalsoom deceased had not left any child behind her. As regards the murder of Mst. Mulakh Bano, her father Muhammad Sher being the only Wali had waived his right of Qisas and had forgiven the accused/convict Muhammad Yar.

3. The learned counsel for the convict-petitioner contends that by virtue of subsection (2) of section 307, P.P.C. the legal heirs of Mst. Kalsoom alias Anaran, deceased, who did not agree to the compromise shall be entitled to their shares of Diyat. He further contends that as regards the murder of Mst. Mulakh Bano, her father Muhammad Sher being the only Wali has waived his right of Qisas and forgiven the accused-convict Muhammad Yar therefore he is entitled to be acquitted of the charge under section 302, P.P.C. on each count.

4. On the other hand, Mr. Tanvir Iqbal, Assistant Advocate-General argues that section 309, P.P.C. is only applicable in the cases of Qisas and not in the cases in which conviction and sentence is awarded as Tazir. He contends that where an accused person has been sentenced for murder as Tazir and not as Qisas the legal heirs could not waive their right of Qisas or accept Badl-e-Sula; however, in view of the amendment made is section 345(2), Cr.P.C. the sentence awarded for the murder as Tazir can be compounded by all the legal heirs of the deceased with permission of the Court. He contends that forgiveness of one of the Walis of the deceased cannot help the applicant. He relies on the cases reported as Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307), Bashir Ahmad v. The State (2004 SCMR 236) and Muhammad Saleem v. The State (PLD 2003 SC 512). He contends that the applicant was awarded death sentence under section 302, P.P.C. on two counts as Tazir therefore he cannot be extended the benefit of provisions of sections 309 and 310, P.P.C. even for the purpose of lesser sentence on the ground that one of the Walis of the deceased had forgiven him.

5. For the disposal of the present application reading of the following provisions of the P.P.C. would be relevant which are as under:-- (307) Cases in which Qisas for Qatl-e-Amd shall not be enforced. Qaisas for Qatl-e-Amd shall not be enforced in the following cases:-- (a)

(b) when any Wali, voluntary and without duress, to the satisfaction of the Court waives the right of Qisas under section 309 or compounds under section 310; and (c)

To satisfy that the Wali has waived the right of Qisas under section 309 or compounded the right of Qisas under section 310, P.P.C. voluntarily and without duress, the Court shall take down the statement of the Walis and record an opinion that is satisfied that the waiver or composition, as the case may be, was voluntarily and not the result of any duress. Section

309. Waiver-Afw of Qisas in Qatl-e-Amd.

(1) In the case of Qatl-e-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)

(b)

(2) Where a victim has more than one Wali, anyone of them may waive his right of Qisas : Provided that the Wali who does not waive the right of Qisas shall be entitled to his share of Diyat. (3) Where there are more than one victim, the waiver of the right of Qisas against one offender shall not affect the right of Qisas of the Wali of the other victim. (4)

(310) Compounding of Qisas , Sulh in Qatl-e-Amd.

(1) In the case of Qatl-e-Amd, an adult sane Wali may, at any time on accepting Badl-i-Sulh, compound his right of Qisas . (311) Tazir after waiver or compounding of right of Qisas in Qatl-i-Amd. Notwithstanding anything contained in section 309 or section 310 where all the Walis 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 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. For the purpose of this section, the expression Fasad-Fil-Arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed with is outrageous to the public conscience, or if the offender is considered a potential danger to the community. 345 (2), Cr.P.C.

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 persons mentioned in the third column of that table:-- Offence Section of the P.P.C. Persons by whom Applicable. Offence may be Compounded. Qatl-i-Amd 302 By the heirs of the victim.

6. Now, death sentence as Qisas can only be awarded when the proof of Qatl-i-Amd liable to Qisas as prescribed in section 304, P.P.C. is available. In the case, either of the form of proof as described in sections 304(a) and (b), 309(1)(2) and 310, P.P.C. was not available, because neither confession of the accused was recorded nor evidence as required under Article 17 of the Qanun-e-Shahadat, 1984 was available, punishment of death as Qisas under section 302(a) cannot be awarded. Provisions of sections 309(1) and (2) and 310(1), P.P.C. would apply to the cases where punishment has been recorded as Qisas and not as Tazir, and as such Afw of Qisas and compounding of Qisas in cases of Qatl would apply only where conviction has been recorded under section 302, P.P.C. and not to the cases where conviction and sentence has been recorded under section 302(b), P.P.C. The judgment of the learned Sessions Judge to the effect whether the applicant was convicted and sentenced as Qisas or as Tazir is silent. Since proof of Qatl-e-Amd liable to Qisas under section 304, P.P.C. is not available in this case because either of the forms of proof as prescribed under sections 302(a), 304, 309(1) and (2) and 310, P.P.C. is not available, as neither the accused has confessed his guilt nor the evidence required under section 17 of the Qanun-e-Shahadat, 1984 is available, therefore, conviction and sentence has been recorded under section 302(b), P.P.C. as Ta zir. Reliance can be placed on the cases reported as Muhammad Saleem v .The State (2003 SCMR 512) and Bashir Ahmad v. The State (2004 SCMR 236).

7. In the case Muhammad Saleem v. The State (PLD 2003 SC 512) while interpreting the provisions of section 345(2), Cr.P.C., as amended by Criminal Law (Amendment) Act (II of 1997) the Hon ble Supreme Court ruled that, Death sentence awarded for murder as Ta zir can be compounded by all the legal heirs of the deceased with the permission of the Court concerned

Where in a case only one of the legal heirs of the deceased had compromised with the accused and the rest of the heirs had been opposing the compromise, punishment awarded under S.302(b), P.P.C., could neither be compounded in absence of other legal heirs nor provision of section 309(2), P.P.C. could be pressed into service in such case. This is the consistent view of the Hon ble Supreme Court. In the case of Bashir Ahmad v. The State and another (2004 SCMR 236) while interpreting the provisions of sections 309, 310 and 302, P.P.C. it has been ruled by the Hon ble Supreme Court that, Provisions of sections 309 and 310, P.P.C. are applicable only in cases of Qisas and not in the cases in which conviction and sentence is awarded as Ta zir, Further by interpreting section 345(2), Cr.P.C., it has been held in the same case that, Accused had been awarded death sentence under section 302(b), P.P.C. as Tazir, therefore, he could not be extended the benefit of the provisions of sections 309 and 310, P.P.C. even for the purpose of lesser sentence on the ground that one of the Walis of the deceased had forgiven him

Favour extended to the accused of forgiveness by his daughter, one of the deceased, could not save him from death penalty .

8. Now on the touchstone of the provisions of sections 309, 310 and 311, P.P.C. read with section 345(2), Cr.P.C. and the case law cited above, we have examined the compromise deed reached between the parties. As regards the murder of Mst. Kalsoom alias Anaran, only one Wali Muhammad Sher, as her husband, had waived his right of Qisas , whereas the other Walis, i.e., mother and the collaterals namely Muhammad Zaman, Mst. Karam Noor and Mst. Sunaran had not waived their right of Qisas . Mst. Kalsoom deceased had not left any child behind her. Therefore, we proceed to hold that in this case sections 309 and 310, P.P.C. are not applicable, because the applicant was not convicted under section 302(a), P.P.C. Further we hold that the sentence awarded for the murder as Tazir can be compounded by all the legal heirs of the deceased with permission of the Court in view of amendment brought in section 345(2), Cr.P.C. The forgiveness of one of the Walies Muhammad Sher as husband of Mst. Kalsoom cannot help the applicant as he was tried, convicted and sentenced as Tazir and not as Qisas , therefore, the compromise to the extent of murder of Mst. Kalsoom, deceased is rejected.

9. As regards the murder of Mst. Mulakh Bano, her father Muhammad Sher being the only Wali, had waived his right of Qisas and forgiven the accused. He was convicted and sentenced as Tazir under section 302(b), P.P.C., therefore, sections 309 and 310, P.P.C. are not applicable in this case in view of the amendment made in section 345(2), Cr.P.C. The sentence awarded for the murder as Tazir can be compounded by all the legal heirs of the deceased with permission of the Court. Forgiveness of the only legal heir Muhammad Sher bring out the case of the applicant from the purview of section 302(b), P.P.C. Therefore, we hold that he could not be convicted under section 302(b), P.P.C. for the murder of Mst. Mulakh Bano. However, question for determination before this Court is that notwithstanding the fact that Muhammad Sher the only legal heir has waived his right of Qisas . Whether the applicant can be convicted under section 311, P.P.C. on the basis of the facts and circumstances of the case and the fact that the applicant against whom the right of Qisas has been waived or compounded, because of the expression Fasad-Fil-Arz appearing in explanation to section 311, P.P.C. and whether the applicant is responsible for the murder in a brutal and shocking manner in which the accused has been convicted, which is outrageous to the public conscience, are questions which would be determined at the time of hearing of the appeal and if we find so, the charge can be amended from sections 302 to 311, P.P.C. by exercising jurisdiction under section 227, Cr.P.C. For what has been discussed above, the compromise to the extent of legal heirs of Mst. Kalsoom alias Anaran is rejected because all the legal heirs of the said deceased Mst. Kalsoom have not accepted the compromise. Whereas the compromise to the extent of the legal heirs of Mst. Mulakh Bano, deceased, is accepted because the only her legal heir Muhammad Sher has forgiven the applicant in Badl-e-Sulh. The death sentence recorded on the second count is set aside. H.B.T./M-778/L Order accordingly.