' MAULVI ANWARUL HAQ, J.--- The petitioners, namely, Sikandar Hayat and Jamshed Ali son of Muhammad Nawaz were accused of committing murder of Habib-ur-Rehman son of Fazal Ellahi on 19-7-1993 vide F.I.R. No,247, dated 20-7-1993, under section 302/34, P.P.C. At Police Station City Jhelum. They were tried by learned Sessions Judge Jhelum, who vide judgment dated 4-9-1995 found them guilty and convicted them under the said provisions of law and sentenced. Them to death as also fine of Rs,50,000 each or in default to undergo 6 months' S.I. Criminal Appeal No,170 of 1995 filed by the petitioners and Murder Reference No,211 of 1995 sent by the learned Sessions Judge, Jhelum, were taken by Division Bench of this Court. The criminal appeal was dismissed and murder reference was answered in affirmative vide judgment, dated 16-8-2000. Criminal Appeal No,378 of 2001 filed by the petitioners was dismissed by the Honourable Supreme Court of Pakistan on 13-6-2002.
2. On 14-11-2002 Allah Ditta son of Habib-ur-Rehman deceased filed an application before the learned Sessions Judge, Jhelum. After reference to the afore-noted facts, it was stated that apart from the said Allah Ditta, deceased was survived by a widow, four sons and three daughters. Out of these two sons and one daughter were minor. He then stated that all the said persons have forgiven the petitioners in the name of Allah and not prepared to accept any compensation. It was further stated that if the~ other heirs do not get their statements recorded, or refused to forgive the petitioner, the said Allah Ditta to his extent forgoes his right of Qisas. On the same day the statement of the said Allah Ditta was recorded by the learned Sessions Judge, Jhelum. He adjourned the case for production of other heirs. On 11-12-2002 all the remaining heirs appeared before the learned Sessions Judge. The case, however, was adjourned for recording of statements of the said persons. On 8-1-2003 the statement of widow and major children of the said deceased person was recorded. On 22-1-2003 the said Allah Ditta also made a statement that his application be dismissed as withdrawn. The application was accordingly dismissed as such vide order, dated 22-1-2003. Against this order Criminal Revision No,17 of 2003 was filed in this Court which was disposed of on 10-2-2003 on the statement of learned counsel who withdrew the said criminal revision with permission to apply to the concerned Court for converting the death sentence into life imprisonment.
3. On 27-2-2003 the petitioners filed an application impleading the State and only said Allah Ditta as respondent. The plea taken was that since Allah Ditta had already got his statement recorded admitting factum of compromise and forgiving the petitioners and foregoing his right of Qisas, the death sentence be set aside and warrants be issued in accordance with alternate sentence to be imposed. This application has been dismissed by the learned Sessions Judge, Jhelum, vide order, dated 5-7-2003.
4. Commencing with the relevant provisions of Holy Qur'an contained in Surah Al-Baqra, Ch. Fawad Hussain, learned counsel for the petitioners very ably brought to our notice the development of law on the subject starting from the judgment of the Honourable Shariat Appellate Bench of the Supreme Court in the case of Federation of Pakistan v. Gull Hassan Khan PLD 1989 SC 633 and has cited several judgments of this Court as well as Honourable Supreme Court on the subject. In particular he has drawn our attention to the cases of Sh. Muhammad Aslam and another v.
Shaukat Ali alias Shauka and others 1997 SCM R 1307, Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547. According to the learned counsel the dictum laid down in the said judgments is that their Lordships categorized cases with reference to the date of commencement of the law amending and adding various provisions of Pakistan Penal Code, 1860 and Code of Criminal Procedure, 1898 i,e, 12-10-1990. According to him the cases in which the occurrence took place before the said date, the punishment would be considered to be by way of Ta'zir and consequently where a compromise has not been effected by all the heirs of the deceased, no benefit would be available to such a person. Learned counsel then proceeds to state that in the cases where the occurrence had taken place after 12-10-1990, as in the present case, the provisions of section 345, Cr.P.C. As amended would apply and thus, notwithstanding the fact that punishment in the present case is by way of Ta'zir, even if one of heirs has once foregone his right of Qisas, the punishment of death would not be executable and would stand converted into life imprisonment.
5. Mr. Tanvir Iqbal, learned A.A.-G., on the other hand, while placing reliance upon the said cases of Sh. Muhammad Aslam and another and Muhammad Arshad alias Pappu draws our attention to the case of Muhammad Saleem v. The State PLD 2003 SC 512 to urge that the learned Sessions Judge, Jhelum, has decided the matter correctly and in accordance with law.
6. We have given thought to the respective contentions of the learned counsel and learned A.A.-G.
In the light of admitted facts and circumstances of this case. There is no dispute before us that conviction was recorded and sentence awarded by the learned trial Court vide judgment, dated 4- 9-1995 by way of Ta'zir, as observed by the learned Sessions Judge in his impugned order, dated 5- 7-2003.
7. Now we find that a Bench comprising of four Honourable Jddges of the Supreme Court of Pakistan, took note of the judgments of the Honourable, Apex Court on the subject including judgment delivered in Gull Hassan Khan case by the Shariat Appellate Bench of the Honourable Supreme Court. The leading opinion was delivered by Mr. Justice Ajmal Mian (as his Lordship then was). It was agreed to by the remaining Honourable Judges on the Bench. Mr. Justice Muhammad Bashir Khan Jehangiri (as his Lordship then was) while agreeing with the said leading opinion recorded a separate note. Now after reference to various portions of the judgment of the Honourable Shariat Appellate Bench and taking note of the amendments brought about in the implementation of the said judgment, his Lordship concluded that since the mother of the deceased had not joined the compromise and as High Court has altered death sentence into imprisonment for life which could be awarded as Ta'zir not as Qisas, section 309(2), P.P.C. Cannot be pressed into service. Now Mr. Justice Muhammad Bashir Khan Jehangiri (as. His Lordship then was) in the judgment recorded by his Lordship noted two legal issues involved in the said case as follows:--
(1) Where punishment is awarded by way of Ta'zir, can principle of section 309 of Pakistan Penal Code (XLV of 1860) as amended by virtue of the Criminal Law (Second Amendment) Ordinance, 1990, apply for compromise of the case?
(2) Whether a case under section 302, P.P.C. As amended can be compounded if all the heirs do not agree to compromise?
' His Lordship referred to provisions of section 302 as amended as also to the provisions of section 309(2), P.P.C. Which latter provisions provided that one of the Walis of the victim may waive his right of Qisas and after noting that the petitioner before their Lordships had not been convicted for an offence of Qatl-i-Amd liable to Qisas within the purview of section 302(a), P.P.C. Proceeded to distinguish the case of Safdar Ali and others v. State and another. PLD 1991 SC 202 by observing that in the said case not only that all the heirs of the deceased desired to compound the offence but a sum of Rs,1,71, 000 was also paid to the heirs of the victim as Badl-e-Sulah. In the case before their Lordships while widow of the victim in person as also guardian of her minor children who were also his Walis have compounded the offence of the petitioner, while the mother of the victim declined to do so. Thereafter, reference was made to section 345, Cr.P.C. And it was observed that intention of the Legislature clearly appears to be that composition of the offence referred to in the said provision of law was made permissible, if all the heirs of the victim had consented.
8. We have also examined the judgment in the case of Muhammad Arshad alias Pappu PLD 2003 SC 547, in which judgment extensive reference has been made to the said case of Muhammad Aslam and it was held that the case was not compoundable under section 345(2), Cr.P.C. As parents of the deceased had not executed any compromise whereas the requirement is that the compromise is to be executed by all the legal heirs.
9. Now it is true that in both the said cases of Muhammad Aslam and Muhammad Arshad alias Pappu the occurrence had taken place prior to 12-10-1990. However, we have no manner of doubt in our minds that ratio of judgments is that in the cases where punishment has been imposed by way of Ta'zir the matter can be compromised only in terms of section 345, Cr.P.C. And term is that all the heirs/Walis of the deceased had entered into the compromise, which admittedly is not the case here.
10. Now the judgment in the case of Muhammad Saleem relied upon by the learned Assistant Advocate-General also took notice of the said case of Sh. Muhammad Aslam and another. In this case the occurrence did take place on 20-1-1991 i,e, at a point of time after commencement of said Amendments Ordinance. The petitioner before their Lordships was convicted and sentenced to death by the learned trial Court vide judgment, dated 30-11-1992. This conviction and sentence was upheld by this Court and then by the Honourable Supreme Court inasmuch as the sentence of death awarded for murder of Baz Khan deceased, was confirmed. Mst. Ghulam Bi, daughter of Baz Khan deceased, compounded the offence by waiving her right of Qisas. The application for compromise ultimately came up before the Honourable Supreme Court and it was held that since the punishment was awarded by way of Ta'zir provisions of sections 309 and 310, P.P.C. Would not apply and as such one of the legal heirs cannot waive his right of Qisas, compromise the offence or accept Badl-i-Sulah. Since in the said case only one of the legal heirs had compromised with convict and rest of the heirs had not, the compromise petition was dismissed.
11. In the case in hand only Allah Ditta, one of the son of the deceased Habib-ur-Rehman stated before the learned Sessions Judge that he has compromised with the petitioners and has forgone his right of Qisas and is not prepared to accept any compensation. On the other hand, widow or other major legal heirs of the deceased got recorded their statements on 8-1-2003 before the learned Sessions Judge and have denied having entered into any compromise with the petitioners.
In this view of the matter respectively following the said dictum of the Honourable Supreme Court of Pakistan, we do hold that the learned Sessions Judge acted in accordance with the said law laid down by the apex Court while rejecting the said application of the petitioners and dismiss this criminal revision.
Revision .