' ASIF SAEED KHAN KHOSA, J.--- Muhammad Anwar respondent No,1 was convicted on two counts of an offence under section 302, P.P.C. For the murders of Muhammad Sharif and Malik Muhammad vide judgment, dated 10-2-1993 passed by the learned Additional Sessions Judge, Sahiwal and was sentenced to death as Qisas on each count. The convictions and sentences of respondent No,1 recorded by the learned trial Court were upheld by this Court on 2-12-1996 when his appeal was dismissed by this Court and the sentences of death passed against him by the learned trial Court were confirmed. An appeal filed by respondent No,1 before the Hon'ble Supreme Court of Pakistan was also dismissed on 1-6-2000 and his convictions and sentences were upheld and maintained. A review petition filed by respondent No,1 before the Honourable Supreme Court of Pakistan was subsequently dismissed on 12-9-2001. At the time of execution of the sentences of death passed against respondent No,1 a compromise was effected between respondent No,1 and all the heirs of Muhammad Sharif deceased and a statement had allegedly been made by the present petitioner, one of the heirs of Malik Muhammad deceased, on 30-10-2002 before the learned Magistrate Section 30, Pakpattan Sharif to the effect that he had entered into a compromise with respondent No,1. In view of this development the hanging of respondent No,1 by way of execution of his sentences of death was stayed. However, on 25-11-2002 the petitioner submitted an application before the learned Sessions Judge, Pakpattan Sharif maintaining therein that he had made no statement before the learned Magistrate Section 30, Pakpattan Sharif on 30-10-2002 and that he had never entered into any compromise with respondent No,
1. That application of the petitioner was subsequently dismissed by the learned Additional Sessions Judge, Arifwala District Pakpattan Sharif vide order, dated 19-5-2003 which order has been assailed by the petitioner before this Court through the present revision petition.
2. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance.
3. After hearing the learned counsel for the parties and going through the record of this case it has straightaway been observed by us that admittedly all the heirs of Muhammad Sharif deceased have already entered into a compromise with respondent No,1 and the dispute which is the subject-matter of the present petition pertains to the fact whether the present petitioner, in his capacity as one of the heirs of Malik Muhammad deceased, had entered into a compromise with respondent No,1 or not. It is not denied that no other heirs of Malik Muhammad deceased has entered into any compromise with respondent No,
1. We must observe at the outset that the controversy involved in the present petition has been found by us to be totally irrelevant and misconceived. It is by now a settled proposition of law that a partial compromise is not permissible in a case of Tazir and in this connection reference may be made to the cases of Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCM R 1307, Muhammad Saleem v.
The State PLD 2003 SC 512, Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC.547, Riaz Ahmad v. The State 2003 SCM R 1067, Niaz Ahmad v. The State PLD 2003 SC 635 and Bashir Ahmad v. The State 2004 SCM R 236. The difficulty in the present case appears to have cropped up because of the fact that at the time of recording the convictions and sentences of respondent No,1 the learned trial Court had remarked that respondent No,1 was being sentenced to death on each count by way of Qisas. It appears, and we observe so with profound respect, that this aspect of the matter had never been brought to the notice of this Court as well as the Hon'ble Supreme Court of Pakistan that the provisions of section 304, P.P.C. Did not stand attracted to the case against respondent No,1 and, thus, respondent No,1 could not be sentenced by way of Qisas. In the case in hand no Tazkiatul-Shahood of the prosecution witnesses had been undertaken by the learned trial Court and no judicial confession had been made by respondent No,1 and, thus, the sentence to be passed against respondent No, 1 could not have been passed by way of Qisas but instead of it could only have been passed by way of Tazir. It is, therefore, quite clear to us that mentioning of the word Qisas by the learned trial Court in its judgment, dated 10-2- 1993 was a result of nothing but an oversight and inadvertence. The necessary corollary to this is that if in the real sense the sentences of death passed by the learned trial Court against respondent No,1 were to be treated and accepted as those of Tazir then the alleged partial compromise of respondent No,1 with the present. Petitioner was legally in consequential whether any statement in that regard was actually made by the petitioner on 30-10-2002 or not. We seek guidance in this regard from the judgment passed by the Honourable Supreme ,Court of Pakistan in the case of Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCM R 2203 whereby an earlier judgment passed by the Honourable Supreme Court of Pakistan itself in the same case and reported as Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 was reviewed and overturned. In the said precedent case the erstwhile Honourable Supreme Appellate Court and even the Hon'ble Supreme Court of Pakistan had earlier on inadvertently treated that case as one of Qisas whereas subsequently through review of its judgment it was ultimately found by the Hon'ble Supreme Court of Pakistan that the said case was legally and factually not one of Qisas but was one of Tazir and, thus, the said case had to entail its proper legal consequences and the convict therein had to be treated in accordance with the appropriate legal provisions.
Respectfully following the said precedent we have no other option but to adopt the same course. It is, therefore, clarified by us that the sentences of death passed against respondent No,1 by the learned trial Court on both the counts of section 302, P.P.C. Shall be deemed to be sentences of Tazir and, thus, any partial compromise, if at all, between the heirs of Malik Muhammad deceased and respondent No,1 is to be nothing but legally inconsequential. With this clarification made by us the issue raised before us through the present revision petition has been rendered irrelevant and this revision petition is, therefore, dismissed.