1993 PLP 1574 (SCMR)

SALEEM AKHTAR, J.‑‑‑The petitioner has sought leave to appeal against the judgment of learned Judge in Chamber whereby petitioner's appeal against his conviction and sentence to imprisonment for life and fine of rupees ten thousand in default to suffer one year R.I. and also payment of compensation of Rs.20,000 to the legal heirs of deceased Shahzad was dismissed. The petitioner was given benefit of section 382‑B, Cr.P.C. In this case petitioner has been convicted for the murder of his sister Mst. Nasreen and one Shahzad alias Bashir committed on 15‑2‑1990. He voluntarily surrendered before the police and made statement that Shahzad who was the maternal cousin of his mother had come to Gojra and opened a private School. His sister Mst. Nasreen was admitted in class tenth of this school where she was studying. On 5‑8‑1989 Shahzad kidnapped Mst. Nasreen. Later it transpired that Shahzad had taken her to Azad Kashmir where the petitioner and his father went and brought them back on the assurance that their marriage would be solemnized. They reached Nawabshah on 14‑2‑1990 in the evening. On 15‑2‑1990 the petitioner turned out his parents from the house and asked Shahzad to sit in the room and wait for the priest to solemnize their marriage. Mst. Nasreen was asked to sit in the adjoining room. The petitioner armed with a pistol went in the room where Shahzad was sitting and fired at him who fell down and died. He then went to the adjoining room and fired at his sister who also died. The learned trial Court convicted him as stated above which was confirmed by the learned Judge in Chamber and petitioner's appeal was dismissed. , He made statement before Magistrate on 17‑2‑1990 where he stated that Shahzad had kidnapped his sister Nasreen and taken her to an unknown place. They came to Nawabshah to his house and he had intention to kill them. At about 12 O'clock he saw his sister and Shahzad in objectionable position in the room therefore due to sudden and grave provocation he fired at them and killed them. Thereafter he walked to the police station and informed of the incident. He however retracted from the confession. The learned counsel contended that the statement made before the police is inadmissible and as the confession is retracted without corroboration the conviction cannot stand. Even if the statement made before the police at the time of making the report is excluded, the retracted confession can be taken into consideration provided it is fully corroborated by authentic evidence as regards factum of crime and petitioner's connection with that crime. The fact that immediately after incident the petitioner appeared before the police to report the incident, he took them to his house and on his pointation dead bodies were found in separate rooms, recovery of pistol produced by the petitioner, recovery of cartridges from near the dead bodies and the positive report of the ballistic expert are strong corroborative evidence of confession. It seems to be a brutal premeditated murder. We do not find any force in the plea that the murder was committed under grave and sudden provocation. We, therefore, refuse to grant leave. An application for compromise under sections 345(2), Cr.P.C. 309, P.P.C. has been filed on behalf of the petitioner and persons claiming to be the legal heirs of both the deceased. According to this application the legal heirs of Nasreen are parents, brothers and sister of the deceased and that of the petitioner. They have stated that they have forgiven the petitioner in the name of Allah and waived their right of Qisas and do not claim any amount from him. In support of the application affidavits of the legal heirs of Nasteen have also been filed. One Barkat Masih has joined the applicants as a legal heir of Shahzad claiming to be his maternal uncle. He has stated that after the death of the parents of Shahzad he had brought him up as his son as there was no relative of the said deceased. He has produced a certificate stating those facts signed by B. Masih. There is an endorsement on this certificate made by Ch. Javed Iqbal, Member District Council, Khenawal (Minority) stating that Barkat Masih had brought up Shahzad and got him educated. Therefore the Member, District Council does not certify that Masih is the legal heir of Shahzad. There is no evidence to show that he is the legal heir/Wali of deceased Shahzad and therefore application on his behalf for compromise cannot be accepted. Under section 309, P.P.C. in case of "Qatal‑e‑Amd' an adult and sane Wali of the deceased at any time can waive his right of `Qisas' without any compensation. Such waiver cannot be made where Government is the `Wali' or the right of waiver vests in the minor or insane. Pakistan Penal Code as amended provides for waiver of right of `Qisas' and also compounding of Qisas (Sullah) in Qatal‑e‑Amd. Such a Sullah (sullah) can be effected by a Wali on accepting Badal Sulah which shall not be less than the value of `Diyat amount'. The provisions relating to (Waiver) (Section 309) and compounding right of Qisas (section 310) are new concepts which are m conformity with the Injunction of Islam. Waiver is completely different from compounding rights of Qisas. In the former the Wali waives the right of `Qisas' without any compensation while in the latter the right of Qisas is compounded on receipt of compensation (Badal‑e‑Sulah). In case where Government is a Wali or where right of Qisas vests in minor or insane no waiver can be effected by the Government or the Wali of minor or insane persons. But they can compound right of Qisas. The question arises whether compromise application can be accepted as there are two victims and legal heirs of one deceased are not available. The legal heirs of the other deceased are the parents, brothers and sisters of the accused petitioner and they have forgiven him. Even if the Wali of deceased Nasreen is allowed to compromise in respect of her murder, in the absence of legal heirs of Shahzad applying under section 309, P.P.C. no compromise can be effected in respect of deceased Shahzad. Section 309(3) provides that where there are more than one victim, waiver of right of Qisas by Wali, of one victim will not affect the right of Wali of the other victim. In such circumstances, it is not possible to effect any compromise in the matter. It is now well‑settled that even in cases of `Qatal‑e‑Amad'. (Sulah) compounding the right of Qisas "is possible even in those cases where the right of `Qisas' cannot be enforced because the sentence of death has not been imposed and lesser sentence granted under section 302, P.P.C.". This is how section 345, Cr.P.C. stands now: Reference can be made to Safdar Ali v. The State (PLD 1991 SC 202). However, as compounding right of Qisas can be effected by the Wali of the deceased the care should be taken to assertain his correct identity and also to see that interest of the minor if involved is not prejudiced. In Hasan Din v. The State (PLD 1992 SC 246) during preparation of the order it was discovered that not only the interest of two minors was involved in the case but also that the compromise had been effected from one side by an agent on the basis of a power of attorney. It was observed: "this obviously did not satisfy the spirit underlying the procedure and form prescribed by this Court for accepting a compromise for disposal of criminal appeal.' The case was adjourned till such time the defects were rectified. In view of the above discussion the application for accepting compromise and acquittal of the petitioner cannot be granted. Leave refused. Application for compromise dismissed. N.H.Q./J‑100/S Petition dismissed.