BASHIR AHMED vs THE STATE and another

1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred against the order dated 3-2-1999 passed by a Division Bench of Lahore High Court, Multan Bench, in a miscellaneous application under section 561-A, Cr.P.C. Moved in Criminal AppealNo,279 of 1989 and Murder Reference No,288 of 1989 under section 561-A, Cr.P.C.

2. ' The petitioner was tried for the charge under section 302(b), P.P.C. And upon conviction was sentenced to death on two counts by the learned Additional Sessions Judge, Khanewal. In appeal the sentence awarded to the petitioner was confirmed by a Division Bench of Lahore High Court, Multan Bench, vide judgment dated 12-4-1993 and the conviction and sentence of the petitioner was further maintained by this Court in Jail Petition No,182 of 1993 vide order dated 29-11-1995.

3. Subsequent to the dismissal of abovesaid petition by this Court, Mst. Mumtaz Mai, real daughter of the petitioner who is mother of Muhammad Iqbal deceased and widow of Riaz Ahmed deceased, having compromised with the petitioner has forgiven him in the name of Almighty Allah. However, the appellant was not pardoned by any of the remaining legal heirs of the two deceased. The petitioner, therefore, moved a Miscellaneous Application bearing No,155/M of 1997 before Lahore High Court, Multan Bench, for giving effect to this partial compromise which came up for hearing before a Division Bench of the High Court and the learned Judges of the Division Bench dismissed the same with the following observations:-- "Therefore, this Court is no longer in any position to alter or vary its earlier judgment which has now merged into the judgment of the Honourable Supreme Court. Let the petitioner approach the Honourable Supreme Court in this regard, if so advised."

4. Learned counsel has contended that if there are more than one Wali and anyone of them waives his right of Qisas as provided under section 309, P.P.C. Or compounds the same under section 310,P.P.C., the sentence of death cannot be executed. We have considered the contentions raised by the learned counsel for the petitioner and find that the provisions referred to above are applicable only in cases of Qisas and not in the cases in which conviction and sentence is awarded as Tazir. It was held in Muhammad Aslam v. Shaukat Ali 1997 SCM R 1307 that "where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-ISulh." However, in view of the amendment made in section 345(2), Cr.P.C., the sentence awarded for murder as Tazir can be compounded by all the legal heirs of the deceased with the permission of the Court. The forgiveness of one of the Wali of deceased cannot help the appellant as he was tried, convicted and sentenced as Tazir and not Qisas, therefore, the favour extended to the appellant who happened his daughter, would not save him from death penalty.

5. The petitioner was awarded death sentence under section 302(b), P.P.C. As Tazir, therefore, he cannot be extended the benefit of provisions of sections 308 and 310, P.P.C. Even for the purpose of lesser sentence on the ground that one of the Wali of the deceased has forgiven him.

6. ' For the foregoing reasons, this petition having no substance is dismissed and leave is refused.