WISAL KHAN Versus THE. STATE

This criminal appeal arises from the judgment of the learned Additional Sessions Judge‑I, Mardan dated 5‑11‑1991 whereby Wisal Khan appellant was convicted under section 311, P.P.C. for the murder of one Qamar‑ur‑Zaman and sentenced to suffer 5 years' R.I.

2. ‑ Briefly, the relevant facts arc that on 29‑10‑1991 the appellant was formally charged by the learned trial Judge for committing the murder of Qamar‑ur,‑Zaman deceased on 4‑3‑1989 within the limits of Police Station Katlang, Mardan but he pleaded not guilty and claimed trial. On the date of hearing. fixed for the evidence of the prosecution the legal heirs ( Walls ) of the deceased appeared before the learned trial Judge and after pressing into service a compromise in writing made a request that the appellant be acquitted as they had patched up the matter and waived their right of Qisas . The learned trial Judge treated the compromise and waiver as genuine and sacrosanct but convicted the appellant under section 311, P.P.C. and sentenced him to suffer 5 years' R.I. on the ground that the deceased was the sole bread‑earner of his family consisting of an old mother and a poor sister and his murder had left them high and dry.

3. The deceased was unmarried and was survived by a mother, Mst. Shamshul Baha Begum, a sister, Mst. Roshan Nama and a full paternal‑uncle, Nawaz Khan who had lodged the F.I.R. in this case. All of them appeared before me in the Court today and reiterated their request for the acquittal of the appellant as they had waived their right of Qisas. Their joint statement was recorded which suggests that they have waived their right of is of their own free will‑and accord.

4.The conviction of the appellant under section 311, P.P.C. and the sentence awarded to him are not sustainable for the short reason that the provision of section 311, P.P.C. cannot be invoked in regard to cases pending before any Court immediately before the commencement of the Criminal Law /a (Second Amendment) Ordinance, 1990 or to the offences committed before the twelfth day of Rabi‑ul‑Awwal, 1411 Hijri (2nd October, 1990), namely, the date of commencement of the said Ordinance. In this context reference may be made to section 338‑H, P.P.C. which reads as follow,:‑

"Saving ‑‑‑(1) Nothing in this Chapter, except sections 309, 310 and 338E, shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990), or to the offences committed before such commencement."

For the foregoing reasons this appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted. He be set at liberty forthwith if not wanted in any other case.

N.H.Q./1398/P Appeal accepted.