ABID HUSSAIN Versus THE STATE
KHAWAJA MUHAMMAD SHARIF, J .‑‑‑This judgment will dispose of Criminal Appeal No. 128 of 1996 filed by Abid Hussain, appellant, who was convicted under section 302(b), P.P.C., and sentenced to death for the murder of Mithu by the learned Additional Sessions Judge, Rahim Yar Khan vide his judgment, dated 20‑11‑1996. Under section 374, Cr.P.C., the Trial Court has sent Murder Reference No. 19 of 1996 for confirmation of death sentence awarded to appellant which shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed in complaint Exh.P.A., lodged by Nabi Bakhsh, complainant are that the complainant had two step‑brothers, namely, Hakim Ali and Mithu. They had been living in the same compound although have constructed separate houses therein. Mithu, step‑brother of the complainant was married, about one week, with Mst. Sahib Khatoon prior to the occurrence and they were living happily in their house. On the night, the complainant and his brother Hakim Ali slept on their cots in the compound at some distance while Mithu and his wife namely Sahib Khatoon were also sleeping in front of their residential room at about 2‑00 a. m. during the night between 7/8th July, 1994, all of sudden, complainant and Hakim Ali his brother woke up on hearing the alarm of Mst. Sahib Khatoon. Ghulam Sarwar and Mooro P.VI also came there. The complainant and P. Ws. witnessed that Abid Hussain appeal was inflicting hatchet blows on the person Mithu. They tried to intervene but appeal issued threat that in case they came ne, they will also be dealt in the same manna Out of fear, the complainant and the P.N remained away and in this way accused away from the spot. Mithu succumbed to t injuries and died at the spot.
Motive behind the occurrence N that appellant wanted to marry with M Sahib Khatoon but she was married with Mithu deceased.
3. After registration of the F.I.R Nawazish Ali S.I. (P.W.12) arrested AI Hussain appellant, who led to the recovery blood‑stained hatchet P.3, which was take into possession vide memo. Exh.P.D. Bloc stained earth was taken into possession vide memo. Exh.P.B. Report of the Chemical Examiner is Exh.P.J. while reports of Serologist are Exh.P.J./1, Exh.P.K. a Exh.P.L. After completion of t investigation, the appellant was challaned face the trial.
4. Prosecution in order to prove its a produced 12 witnesses in all, thereafter, I statement of the appellant was recorded under section 342, Cr.P.C., and on conclusion the trial the learned Additional Session Judged convicted and sentenced the appeal, as stated above.
5. During the pendency of appeal Hakim Ali moved an application be Criminal Miscellaneous No.1 /M of 19 stating therein that except Mst. Sat Khatoon, wife of the deceased, all t remaining heirs have granted pardoned to t appellant in the name of Almighty Allah. report was called for from the learned Sessions Judge, Rahim Yar Khan. As per report except Mst. Sahib Khatoon widow of the deceased all the legal heirs have pardoned the appellant and waived their right of "Qisas". So, it was a partial compromise.
6. At the very out‑set, learned counsel for the appellant submits that since legal heirs of the deceased except his widow namely. Sahib Khatoon have pardoned the appellant and waived the right of "Qisas", conviction under section 302(b), P.P.C., is not maintainable and at the most the appellant can be convicted under section 311, P.P.C. He submits that he will be satisfied if the conviction of the appellant is altered from section 302(b), P.P.C., to section 311, P. P. C.
7. Learned counsel for the complainant and the State have no objection if conviction of the appellant is converted from section 302(b), P.P.C., to section 311, P. P. C.
8. We have heard the learned counsel for the parties and have also gone through the report submitted by learned Sessions Judge, Rahim Yar Khan. On an application, moved by Hakim Ali for the grant of permission to compound the offence. Section 311, P.P.C., is. very clear on the subject which is reproduced hereunder.
311. Ta'zir after waiver or compounding or right of Qisas in Qatl‑i‑Amd‑‑ Notwithstanding anything contained in section 309 or section 310, where all the wali 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 against them the right of Qisas has been waived or compound deal with imprisonment of either description for a term of which may extend to fourteen years as ta'zir."
In view of the above provision of law, conviction of the appellant is converted from section 302(b), P.P.C. to section 311, P.P.C., and we award him the sentence to undergo R.I. for 14 years with the benefit of section 382‑B, Cr.P.C. With this modification in the sentence appeal filed by the appellant stands disposed of and Mufder Reference is answered in the negative.
Death sentence is not confirmed.
N.H.Q./A‑18/L
Order accordingly.