1994 P Cr (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

Three real brothers, namely, Nisar Ahmad, Iftikhar Ahmad and Arshad had been tried by a learned Additional Sessions Judge of Sargodha for having allegedly committed the murder of one Rehmat Khan who was their stepbrother and for having murderously assaulted a son of Rehmat Khan deceased, namely, Sarfraz, complainant.

2. Through his judgment, dated 31-5-1989, the said learned Additional Sessions Judge convicted Nisar accused under section 302, P.P.C. and punished him with death and a fine of Rs.10,000 or sufferance of one year's S.I. in default of payment of fine. Iftikhar and Arshad accused were, however, convicted only under section 308, P.P.C. and sentenced to seven years' R.I. These two convicts had been allowed benefit of the provisions of section 382-B, Cr.P.C. and it was further directed that the amount of fine imposed under section 302; P.P.C. shall be paid to the heirs of Rehmat Khan deceased.

3. Murder Reference No.178 of 1989 was received in this Court seeking confirmation of the above-mentioned sentence of death while the three convicts, namely, Nisar, Iftikhar and Arshad have filed Criminal Appeal No.470 of 1989 impugning the above-noticed conviction and sentences recorded against them.

4. Sarfraz complainant approached this Court through Criminal Revision No.411 of 1989 and prays for the conviction of Iftikhar and Arshad convicts under section 302, P.P.C. and further prays for a direction to Nisar convict to pay compensation under section 544, Cr.P.C. This revision petition had been admitted to regular hearing and notices had been issued to the respondents convicts. All these matters are being disposed of together through this single judgment.

5. During the pendency of these matters before this Court it was submitted that some of the heirs of the deceased had granted AFW compounded the offence in question to and with the three appellants. Consequently, this Court directed the production of the heirs of Rehmat Khan deceased to verify the position vis-a-vis the composition of the murder in question.

6. Statements of the said heirs who appeared before this Court had been recorded on oath and it transpired from the said statements that the father of Rehmat Khan deceased had died before this murder and that he had thus left behind his mother Mst. Resham Bibi, his widow Mst. Rashida Begum, his three sons, namely, Sarfraz, Tubassam Hussain and Ghulam Mujtaba and five daughters namely, Mst. Sajida Bibi, Mst. Najma Akhtar, Mst. Nasreen Akhtar, Mst. Rukhsana and Mst. Rizwana. From these statements it further transpired that the mother of Rehmat deceased namely, Mst. Resham Bibi and one of the sons of Rehmat deceased, namely, Sarfraz who is the complainant of the present case and also an injured P.W., had elected not to compound the said murder with the appellants either by way of AFW or by way of acceptance of Badal-e-Sulh. The remaining heirs of the deceased i.e. the widow, two sons and five daughters of Rehmat Khan deceased, however, deposed before us that they had granted AFW to all the three appellants. Ghulam Mujtaba and Mst. Rizwana Rehmat above-mentioned were about 11 years of age but as both of them were students and even otherwise appeared to be of matured understanding, this Court had recorded their statements also and even they had also granted AFW as above-mentioned. Nevertheless, their mother, namely, Mst. Rashida Begum had added during her statement before us that she had compounded the murder in question with the appellants on behalf of the said minor children.

7. Learned counsel for Sarfraz complainant which Sarfraz also happens to be a son of Rehmat deceased who has elected not to enter into any compromise with the convicts-appellants, submits that the appellants cannot be acquitted of the murder charge because only some of the heirs have compounded the said murder with the appellants. Pressing his revision petition filed against the acquittal of Iftikhar and Arshad appellants from the charge of murder, the learned counsel argues that no reason has been given by the learned trial Judge for not convicting Iftikhar and Arshad appellants under section 302, P.P.C.

8. We find that the impugned judgment, dated 31-5-1989, passed by the learned Additional Sessions Judge is wanting in more than one respects while no reason has been given for not convicting Iftikhar and Arshad appellants under section 302, P.P.C., no reason exist in .the said judgment for not convicting and punishing all the three appellants under section 307, P.P.C. for assault on Sarfraz P.W.

9. So far as the non-conviction of the three appellants for assault on Sarfraz P.W. is concerned, the same has not been challenged either by the State or even by the complainant through his above-mentioned petition. This matter to the said extent therefore, stands closed.

10. It is true that only some of the heirs of Rehmat deceased have compounded the murder in question with the three appellants. Therefore, the acquittal cannot be claimed for Nisar appellant who stands convicted under section 302, P.P.C. and punished with death. The newly-substituted provisions of section 311, P.P.C. as amended by Ordinance XII of 1993 envisage punishment of the offender by way of Tazir to a maximum term of 14 years' imprisonment if only some of the Walis of the deceased waive or compound the right of Qisas.

11. Keeping in view the provisions of section 311, P.P.C. we set aside the conviction and sentences recorded against Nisar appellant under section 302, I P.P.C. and instead order him to suffer ten years' R.I. under section 311, P.P.C. on account of Qatl-i-Amd committed by him of Rehmat deceased in respect of which Qatl-i-Amd only some of the heirs of the deceased have waived/compounded the right of Qisas and not all the Walis.

12. Since Mst. Rukhsana Bibi and Rizwan Rehmat, the daughter and son f respectively of Rehmat deceased are minors, Nisar appellant who had been convicted for the Oatl-i-Amd of Rehmat deceased has offered to pay to them Badal-i-Sulh to the extent of their shares in the amount of Diyat. This amount comes to Rs.22,023 in the case of Rizwan Rehmat and Rs.11,012 in the case of Mst. Rukhsana Bibi. Nisar appellant is directed to pay this amount to the said two minors by purchasing Defence Saving Certificates of the abovesaid amounts, respectively, in the names of these two minor heirs of Rehmat deceased. Even if he has suffered the entire sentence of imprisonment awarded to him under section 311, P.P.C. as above directed, he shall not be released from jail till these amounts are paid as above directed.

13. Mst. Resham Bibi, mother of Rehmat deceased and Sarfraz P.W., the son of Rehmat deceased could have been entitled to the payment of their respective shares in Diyat as Badl-i-Sulh being the non-compounding heirs but no such order is being made for any such payment because through their statements recorded by this Court on 4-11-1991 each one of them had expressed his refusal to accept any payment of such amount.

14. The learned counsel for the appellants states that he would not press his appeal to the extent of punishment of seven years' R.I. awarded to Iftikhar and Arshad appellants under section 308, P.P.C. Criminal Appeal No.470 of 1989 is dismissed to the extent of Iftikhar and Arshad appellants.

15. The result is that Nisar appellant now stands punished to suffer ten years' R.I. under section 311, P.P.C. while each one of Iftikhar and Arshad appellants stands sentenced to undergo seven years' R.I. under section 308 P.P.C. Even if Criminal Revision No.411 of 1989 seeking conviction of Iftikhar and Arshad appellants under section 302, P.P.C. was allowed and a retrial ordered, the maximum punishment that would be awardable to them would be 14 years' R.I. under section 311, P.P.C. as the above-mentioned heirs have declared waiver of their right of Qisas in respect of .murder of Rehmat deceased in favour of these two appellants also. In the case of Nisar appellant, in view of such a waiver we have awarded him ten years' R.I. and similar would be the punishment which might be awarded to these appellants after a retrial. They, however, already stand punished with seven years' R.I. under section 308, P.P.C. and this exercise of new trial is not likely to yield any substantial benefit to the complainant or any substantial difference in the punishment which Iftikhar and Arshad stand ordered to suffer.

16. In the circumstances we find that no fruitful purpose would be served through the acceptance of Criminal Revision No.411 of 1989. The same is, therefore, dismissed.

17. As has been mentioned above, Criminal Appeal No.470 of 1989 stands dismissed as withdrawn to the extent of Iftikhar and Arshad appellants and in the case of Nisar, his sentence of death has been converted to ten years' R.I. and the sentence of fine imposed on-him under section 302, P.P.C. also stands set aside as section 311 does not envisage imposition of any fine. Criminal Appeal No.470 of 1989 is, therefore, disposed of in the above terms.

18. In view of what has been noticed above, there is no question of confirmation of any sentence of death and Murder Reference No.178 of 1989 is disposed of accordingly.

19. All the three appellants shall be allowed the benefit of the provisions of section 382-B, Cr.P.C. N.H.Q./N-239/L Order accordingly.