KHAN MUHAMMAD Versus THE STATE

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.- -- This petition for leave to appeal has been filed against the judgment, dated 4th March, 2002 passed by Lahore High Court, Lahore whereby Criminal Miscellaneous No.339/M of 2002 filed by petitioner has been dismissed.

2. Facts in brief leading to filing of instant petition are that, petitioner was convicted under section 302, P.P.C. by the Sessions Judge, Khushab vide judgment, dated 13th July, 1993, for the murder of Muhammad Khan in a case registered vide F.I.R. No.22 of 1993, dated 26th February, 1993, at Police Station Gunjial, District Khushab and sentenced to death, with fine of Rs.25,000 and in default in payment of fine to further undergo R.I. for one year. He was also directed to pay Rs.25,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in default whereof he was directed to undergo further R.I. for six months. Feeling aggrieved from the judgment of the trial Court, petitioner preferred Criminal Appeal No.573 of 1993 in the Lahore High Court, Lahore which was dismissed vide judgment, dated 24th September, 1998 and his death sentence was confirmed. Petitioner approached this Court against the judgment of Lahore High Court, Lahore by way of filing criminal petition for leave to appeal, which was granted and petition was converted into Criminal Appeal No.306 of 1999, but ultimately was dismissed vide judgment, dated 7th February, 2001 and a Review Petition No.6 of 2001 also failed vide order, dated 14th November, 2001.

3. The petitioner, on 29th November, 2001, moved an application under sections 309, 310, 338-E(ii), P.P.C. in the Court of Sessions Judge, Khushab, narrating therein that except the parents of Khan Muhammad (deceased) namely Ghulam Ahmed (father) and Mst. Kafayat Khatoon (mother), all other legal heirs i.e. Mst. Nazir Khatoon (widow of deceased) and four children including Mst. Ameer Khatoon (major daughter of deceased) had waived their right of Qisas and Diyat against him, therefore, on accepting compromise, he may be acquitted of the charge. The learned Sessions Judge, Khushab recorded the statements of Mst. Nazir Khatoon (widow), Mst. Ameer Khatoon (major daughter of deceased), Ghulam Ahmed (father) and Mst. Kafayat Khatoon (mother). Mst. Nazir Khatoon and Mst. Ameer Khatoon both have stated that they have pardoned the convict and waived their right of Qisas and Diyat. Mst. Nazir Khatoon further stated that she had pardoned Khan Muhammad (petitioner) subject to payment of Rs.5,00,000 as Diyat on behalf of minor children, namely Mst. Rehmat Khatoon, Muhammad Farman and Muhammad Ehsan. Ghulam Ahmed (father) and Mst. Kafayat Khatoon (mother) stated that they had not pardoned the accused. The learned Sessions Judge vide an elaborate order dated 14th February, 2002 dismissed the application on the ground that since the father and mother of the deceased had not joined the compromise, therefore, the provisions of section 309(2), P.P.C. cannot be pressed into service. Feeling dissatisfied from the said order, petitioner preferred Criminal Miscellaneous No.339-M of 2002 before the Lahore High Court, Lahore seeking acquittal on the basis of waiver of Qisas and Diyat and in the alternative reduction of sentence from death to imprisonment for life, which has been dismissed by means of impugned judgment. Relevant portion from the concluding para. is reproduced hereinbelow for convenience:--

(5) ..Khan Muhammad petitioner has not been convicted under section 302(a), P.P.C. to death as Qisas. Therefore, the provisions of section 309 and section 311, P.P.C. cannot be invoked. In the instant case, Khan Muhammad has been awarded death sentence as Ta zir under section 302(b), P.P.C., as such the compromise between the parties shall be governed by the provisions of section 345(2), P.P.C., which provides that a compromise under section 302, P.P.C., can be made by all legal heirs of the victim, therefore, a compromise effected between some of the legal heirs and the convict cannot be considered for allowing permission to compound the offence. We find no justification to exercise powers under section 561-A, Cr.P.C., therefore, this petition fails and is hereby dismissed.

Hence this petition for leave to appeal has been filed.

4. Learned counsel appearing for petitioner stated that sentence of Qisas under section 302(a), P.P.C. is liable to be set aside, notwithstanding the fact whether whole of the legal heirs or some of them have compounded the offence, subject to the provision of sections 309(2) and 311, P.P.C. whereas the sentence of Ta zir under section 302(b), P.P.C. is not liable to be set aside, unless it has been compounded by all the legal heirs of the deceased with permission of the Court, in terms of section 345(2), Cr.P.C. Therefore, on the basis of this anomalous position, the Court may hold that the sentence of Ta zir is also liable to be set aside if all the legal heirs or some of them have compounded the offence. According to him, in order to enforce the principles of Islamic Injunctions, wherein the offence punished for Qisas has been made compoundable, despite of the fact that to prove the offence of murder, entailing the punishment of Qisas, the standard of evidence, to prove the crime, is much stringent, in terms of Article 17 of the Qanun-e-Shahadat Order, 1984, comparing to the evidence, required to prove the offence, liable for punishment of Ta zir under section 302(b), P.P.C. In this behalf he placed reliance on Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307.

5. Learned Additional Advocate-General, however, contended that this Court in good number of cases has already decided this question contrary to contention, which has been raised by the petitioner s counsel, holding thereby that Court is not bound to give permission under section 345(2), Cr.P.C. to compound the offence liable to be punished under Ta zir i.e. 302(b), P.P.C. if all the legal heirs of the deceased have not agreed to compromise the offence with the convict.

6. Learned counsel appearing for caveat/complainant subscribed to the view point of learned Additional Advocate-General. They, have, however relied upon the judgments, reported as Manzoor v. The State 1992 SCMR 2037, Manzoor Hussain v. The State 1994 SCMR 1327, Abdullah Jan v. The State 2003 SCMR 1067, Muhammad Saleem v. The State PLD 2003 SC 512, Muhammad Arshad v. Additional Sessions Judge, Lahore PLD 2003 SC 547 and Bashir Ahmed v. The State 2004 SCMR 2037.

7. We have heard parties counsel at length and with their assistance availed opportunity to go through the reported judgments on the issue under discussion. In this behalf the principle laid down by this Court in the case of Muhammad Aslam (ibid) being followed consistently, therefore, detailed discussion of facts of each case, would be nothing, but to enlarge the volume of the judgment. However, it is equally important to note that the foundation stone of the judgment of Muhammad Aslam (ibid) is the judgment of this Court in the case of Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633, pronounced by a Shariat Appellate Bench of this Court, comprising of five the then Honourable Judges of this Court. This judgment has been announced while examining the old provisions of section 302, P.P.C. and sections 345 and 381,. Cr.P.C. etc. at the touchstone of Holy Qur an and Sunnah, therefore, we consider it appropriate to reproduce herein-below relevant paras. from the judgment of the Muhammad Aslam (ibid) for convenience:--

(17) Reference may also be made to the following extract from the book by

(18) The above extract from Molana Mufti M.Shafi celebrated Tafseer Muaraf-ul-Quran and the extract from the above book indicates that if the victim has more than one Wali and if any one of them waives his right, the right of Qisas cannot be enforced. The Wali who has not waived or has not entered into Badal-e-Sulh will be entitled to receive his share of Diyat subject to section 311, P.P.C. under which it has been provided that notwithstanding anything contained in section 309 or section 310, where all the Wali do not waive of 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 whom right of Qisas has been waived or compounded with imprisonment or either description for a term which may extend to fourteen years as Ta zir as pointed out herein above. It may further be observed that subsection (2) of section 309, P.P.C. quoted hereinabove and discussed is in line with the above extract from Tafseer Muaraf-ul-Quran by Molana Mufti M.Shafi as its proviso lays down that the Wali, who does not waive his right of Qisas, shall be entitled to his share of Diyat. There is no doubt that section 338-E, P.P.C., provides that subject to the provisions of this Chapter or compounded and the provisions of sections 309 and 310 shall mutatus mutandis apply to the waiver of compounding of such offences. The proviso to the same lays down that where offences have been waived or compounded, the Court may by its discretion having regard to the facts and circumstances of the case acquit or award Ta zir to the offender according to the nature of the offence. The above section is to be interpreted in the light of the guidelines for interpretation provided in section 338-F, which enjoins that the Court while interpreting and applying the provisions of the Chapter in question of the P.P.C. and in respect of matters ancillary to akin thereto, shall be guided by the Injunctions of Islam as laid down in the Holy Qur an and Sunnah. In our view, this provision does not nullify the well-settled proposition of law that in case there an accused person has been awarded sentence for murder as Ta zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh. However, in view of the amendment in section 345(2), Cr.P.C. the 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.

8. A careful perusal of above paras. and the relevant law discussed therein, relating to waiver of right of Qisas by one of the Walis of the deceased indicates that it is based on the Injunction of Qur an and Sunnah , which, inter alia, ordain us to adopt a way of life according to Islamic Injunctions, being member of the welfare State.

. It goes without saying that Islamic system of life is more liberal than any other religion, the object of which is to promote harmony and brotherhood amongst the inhabitants of welfare State, therefore, due to this reason despite of the fact that to prove the offence of the Qatl-e-Amd, liable to death by Qisas, the evidence of the witnesses, fulfilling the test of Tazkiya-tush-Shahood is required, but to achieve the object of the Qur an and Sunnah, the sentence of death, liable to Qisas, has been made compoundable even if the offence has not been compounded by all the legal heirs or otherwise, subject to the provisions of sections 309, 310, 311, P.P.C. but as far as the offence of Qatl-e-Amd, liable to death by Ta zir, is concerned, it has been made compoundable by enacting section 345(2), Cr.P.C. which says that if all the legal heirs have compounded the offence, the Court is empowered to accord permission to ensure that the parties may burry their hatchets once for all, because the idea behind it is that if any of the legal heirs of the deceased has not agreed to compromise the offence, he would not be entitled for Diyat under section 310, P.P.C. nor on acceptance of such compromise, the Court would be empowered to punish such offender under Ta zir whereas in the case of Qisas, notwithstanding the fact that all the legal heirs of the deceased or some of them have compounded the offence but the Court is empowered to award such punishment to such an offender under section 311, P.P.C.

10. Thus, keeping in view the above discussion, the offence wherein sentence has been awarded under Ta zir under section 302(b), P.P.C., has not been made compoundable unless all the legal heirs of the deceased agree for the same, therefore, we are of the opinion that there is no confusion in the law and the judgment relied upon by the learned counsel for the petitioner in the case of Muhammad Aslam (ibid) has not advanced his case in any manner.

For the foregoing reasons, we see no substance in this petition, as such same is dismissed and leave declined.

M.B.A./K-28/S Petition dismissed.