MUHAMMAD AFZAL and others vs THE STATE

1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,286 of 1995 filed by Muhammad Afzal and Muhammad Bakhsh, appellants, who were tried by the learned Judge Special Court constituted under the Suppression of Terrorist Activities Act, 1975 and were convicted and sentenced vide judgment dated 9th October, 1995 as under:--

(1) Muhammad Afzal, appellant, death and a fine of Rs,two lacs, in default five years' R.I. Plus compensation of Rs,200,000 under section 302, P.P.C. Three years' R.I. With a fine of Rs,10,000 and in default six months' R.I. Under section 324, P . P. C .

(2) Muhammad Bakhsh, appellant, life imprisonment and a fine of Rs,200,000 in default five years'

2. R.I. Plus compensation of Rs,200,000 under section 302, P.P.C. Three years' RA. And fine of Rs,10,000 in default six months' R.I. Under section 324, P.P.C.

3. ' During the pendency of appeal, on application i,e, Criminal Miscellaneous No,389-M of 1998, under sections 309/310, P.P.C. Read with section 345, Cr.P.C. Was filed which was sent to the learned Sessions Judge for report. According to the report of learned Sessions Judge, the deceased Muhammad Amin was survived by Mst Razia Sultan, Mst. Asia Begum, Mst. Shakeela Begum and Muhammad Yasin his real brother. Mst. Jameela sister of the deceased and Shabir Ahmad the other brother of the deceased though were legal heirs of the deceased but they did not appear before the learned Sessions Judge to endorse the compromise. Thereafter, Civil Miscellaneous No,121-M of 2000 was moved alongwith affidavit of Muhammad Shabbir brother of the deceased stating therein that he had pardoned the accused/appellants in the name of Almighty Allah without any coercion. The report of the learned Sessions Judge was also to the effect that the legal heirs of the deceased who appeared before him have entered into a compromise with accused without any pressure or coercion from any side and that they have no objection if the convicts are acquitted from the charge. Now only Mst. Jameela real sister of the deceased is left in field. She has not pardoned the convict. It may be mentioned here, that deceased Amin was unmarried. His father and mother had already died.

4. ' In, such an eventuality, section 307, P.P.C. Comes into play which is re-produced hereunder:-- "307. Cases in which Qisas for Qatil-i-Amd shall not be enforced.---(1) Qisas for Qatl-i-Amd shall not be enforced in the following cases, namely:--

(a) When the offender dies before the enforcement of Qisas;

(b) When any Wali voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and

(c) In the instant case, then the Qisas is not enforceable, then the punishment is provided in section 311, P.P.C. Which reads as under:--

311. Ta'zir after waiver or compounding of 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 Fasadfil-Art (0.r.111c) ), the Court may, in its description having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term of which may extend to fourteen years as Ta'zir."

5. Now coming up to the quantum of sentence, it may be noted that except one all the legal heirs of the deceased have pardoned the convicts in the name of Almighty Allah, so we convert the death sentence of Muhammad Afzal appellant and award him 10 years' R.I. With the benefit of section 382-B, Cr.P.C. The sentence of fine and the amount of compensation are set aside. To his extent the appeal is dismissed with reduction in the quantum of sentence. His death sentence is not confirmed. However, his sentence under section 324/34, P.P.C. Is maintained. However, both the sentences shall run concurrently.

6. Now, we take up the case (4 Muhammad Bukhsh appellant. He did not cause any injury to the deceased. The role ascribed to him was of firing two shots at Muhammad Akbar P.W. Hitting on his left pelvis and left leg. So the conviction under section 324, P.P.C. Is maintained. However, the sentence which the appellant has already undergone is considered to be sufficient to meet the ends of justice.

7. ' So far as the conviction under section 302/34, P.P.C. Is concerned, except Mst. Jamila, all the remaining legal heirs of Muhammad Amin deceased have prodoned the convict in the name of Almighty Allah, so while reverting back to sections 307 and 311, P.P.C., we reduce the sentence of Muhammad Bux appellant from imprisonment for life to one which he has already undergone. The amount of fine and compensation directed by the learned trial Court is set aside. Muhammad Bux appellant N in jail. He shall be released fotthwith, if not required to be detained in any other case.