' KHALIL-UR-REHMAN RAMDAY, J.--- Ghulam Hussain and Ghulam Yasin are the brothers of one Mst.
Zubaida. They along with their Phuphizad Faqir Muhammad and one Shahab Din had been tried by a learned Additional Sessions Judge of Rahimyar Khan for the murder of one Abdullah who was the husband of the said Mst. Zubaida and for the murder of Nasrullah who was a one and a half years old son of the said lady, besides their trial by the said learned Court for a murderous assault allegedly launched by them all, on the above-described Mst. Zubaida and her suckling baby, namely, Mst. Bilqis.
2. Through his judgment, dated 23-5-1989, the said learned Additional Sessions Judge extended the benefit of doubt to Ghulam Yasin and Shahab Din accused and accordingly acquitted them of the above-noticed charges. Ghulam Hussain and Faqir Muhammad were, however, found guilty of the said charges. They were both convicted for the murders of Abdullah and. Nasrullah and each one of them was after being convicted under section 302/34, P.P.C. On each count punished with death and a fine of Rs,6,000 or sufferance of two years' R.I. In default of payment of the said fine and consequent upon their conviction under section 307/34, P.P.C. For attempting the murders of Mst, Zubaida and Mst. Bilqis, each one of them, had been sentenced to four years' R.I. With a fine of Rs, 1,00& or two months R.I. In default thereof, on each count.
3. Murder Reference No,9 of 1989 seeks confirmation of the said sentences of death whereas, through Criminal Appeal 'No,100 of 1989, the said Ghulam Hussain and Faqir Muhammad convicts impugn the above-notice convictions and sentences recorded against them.
4. Both these matters are being disposed of together this single judgment.
5. The accusations which had led to the said convictions and sentences are that the said accused persons had thrown acid on the two deceased persons and on the two injured victims of the occurrence in question when they were all asleep in their house at about 3-00/4-00 a.m. On the night between the 29th and 30th of May, 1984. The occurrence in question had been reported at Police Station Zahir Pir of District Rahimyar Khan through a statement of Abdullah deceased which he had made to Muhammad Hanif A.S.-I. (P.W.14) of the said police station while the said deceased was being carried to the hospital, in an injured condition, along with the other injured persons of the said occurrence.
6. He had further disclosed that about four years prior to the occurrence, the father of his wife Mst.
Zubaida P.W., had given the said lady in marriage to him in consideration for an amount of Rs,21,000 but the above-named accused persons who were the brothers and a Phuphizad of the said lady had felt offended with the same. He had further claimed that the said accused persons filed suits to retrieve Mst. Zubaida and even obtained warrants under section100 of the Cr.P.C. For the purpose but the said lady stuck to him and refused to leave him to go back to her parental home. He had added that it was to avenge the said frustration and disappointment that the said accused persons had committed the dastardly crime, above-described.
7. During the course of investigation, the Investigating Officer, had, on spot inspection, taken into custody a can P.1, containing some left over liquid which on chemical examination had been declared to be sulphuric acid. He had also taken into possession a burnt bed sheet P.2, a burnt pillow cover P.3, a burnt female Shalwar P.4, a burnt female shirt P.5, partly burnt cot P.6 and a lantern P.7.
8. Dr. Shabir Ahmad who had conducted the post-mortem examination of the dead bodies of Abdullah and Nasrullah deceased and the Medico-Legal examination of the persons of Mst.
Zubaida and Mst. Bilqis, has found acid burns on the said bodies and the persons and had declared that the two deceased persons had succumbed to the injuries caused to them by the said burns.
9. When confronted with the prosecution evidence, the appellants had denied their involvement in the occurrence in question and pleading that the said occurrence, being a dark .Night occurrence, had gone unwitnessed, claimed that they had been falsely implicated on account of enmity and suspicion.
10. The learned counsel for the appellants made a half-hearted attempt at arguing that the prosecution had failed to prove its case against the appellants but finally contended himself by praying for their acquittal on the ground that some of the heirs of the two deceased persons had compounded the offences in question with the appellants.
11. Before adverting to the question of the composition of the said offences, we consider it appropriate to examine for ourselves, whether the convictions recorded against the two appellants were sustainable on the strength of the evidence led against them by the prosecution.
12. The prosecution had offered Mst. Zubaida (P.W.2), Mst. Sharifan (P.W.3) and one Ghulam Yasin son of Imam Din (P. W.4.) as the eye-witnesses of the occurrence in question.
13. Mst. Zubaida was one of the inmates of the house where the occurrence in question had taken place. She had herself received injuries in the said occurrence. Her presence at the place of occurrence at the relevant time was thus, beyond any doubt whatsoever. She' was no doubt the widow and the mother respectively of Abdullah and Nasrullah deceased persons but at the same time she was also the real sister and a Mamunzad of Ghulam Hussain and Faqir Muhammad appellants. The defence had failed to bring out even the slightest possible or animosity which could have prompted her to maliciously secure the death of her own blood by falsely substituting them for the real killers of her husband and her son.
14. In the circumstances, her solitary statement appears to be sufficient to hold the appellants guilty of the charges levelled against them.
15. Nevertheless, she was supported, at the trial, by Mst. Sharifan P.W. Who was again another inmate of the house which was the scene of the crime in question and although, she was a sister of Abdullah deceased, yet the defence had failed to demonstrate any reason which could have led her to rightly accuse the appellants of the said crime.
16. And then there was the statement of Abdullah deceased himself which he had made to Muhammad Hanif A.S.-I. Immediately after the occurrence and which statement then became the F.I.R. Of the present case. This statement of the said deceased which qualified as his dying declaration, was another factor corroborating Mst. Zubaida P.W., if any corroboration was at all required, to' believe her testimony.
17. The Chemical Examiner, through his report Exh.P.N. Had opined, as has been mentioned above, that the liquid in the Can P.1 was sulphuric acid. This report is in further confirmation of the accusations levelled by the prosecution against the appellants.
18. It is true that the occurrence in question had, taken place in the darkness of the night but on account of the extremely close relationship of the eye-witnesses of the occurrence in question with the appellants, the claim of the eye-witnesses regarding the identification of the appellants by the said P.Ws., would be a claim open to no serious exception.
19. The above examination of the evidence available on record persuades us to hold that the two appellants had been rightly convicted of the charges levelled against them and that the said convictions were consequently unexceptionable.
20. This brings us to the question of compromise which had reportedly been reached between the appellants and some of the heirs of the deceased.
21. Abdul Ghani, Mst. Sharifan and Mst. Amina, the brother and the sisters, respectively, of Abdullah deceased were produced before us in support of the claim that they had granted Afw to the appellants in the name of Allah. Their statements were separately recorded.
22. Mst. Zubaida P.W. Who was also present in Court, desired to make a statement in connection with the said compromise. Her statement was also, likewise, recorded.
23. From the said statements, it transpired that the father of ' Abdullah deceased had died prior to the present occurrence while his mother breathed her last after the present occurrence; that Mst.
Zubaida was the only widow and Mst. Bilqis and Mst. Hanifan were the only descendants left behind by Abdullah deceased and further that Abdul Ghani was the only brother and Mst. Sharifan, Mst.
Amina and Mst. Haleeman were the only sisters who had survived the said deceased.
24. Since both the parents of Abdullah deceased had died prior to the death of the said deceased and since he had not been survived by any male issue, therefore, besides his widow and two daughters, his surviving brother and sisters had also become his heirs, according to Shariah.
25. Likewise, Nasrullah deceased had been survived only by his mother and two sisters.
Consequently, Abdul Ghani above-mentioned who was a brother of the father of the said deceased had also qualified as an heir of Nasrullah deceased.
26. Abdul Ghani is thus, an heir and a Wali .Of both, Abdullah and Nasrullah deceased. He stated before us that he had granted Afw to both the appellants in the name of Allah in respect of both the murders in question.
27. Mst. Amina and Mst. Sharifan, being the sisters of Abdullah deceased are Walis only of the said deceased. Mst. Amina has granted pardon to both the appellants for the murder of her deceased brother while Mst. Sharifan declared that she had forgiven only Faqir Muhammad appellant for the said murder and had not granted pardon to Ghulam Hussain appellant.
28. Mst. Haliman, the third sister of Abdullah deceased, however deposed before us that she had not granted Afw to any of the appellants for the murder of her brother nor was she willing or prepared to compound the said offence.
29. Similar was the position, taken by Mst. Zubaida P.W., who stated on her behalf as also on behalf of her .Two minor daughters, namely, Mst. Bilqis and Mst. Hanifan that she neither granted Afw to the appellants for the murders of Abdullah and Nasrullah deceased nor had she forgiven them with respect to the injuries that they had caused on her person and on the person of her minor daughter, namely Mst. Bilqis.
30. The position which thus, emerges is that Ghulam Hussain and Faqir Muhammad appellants have not been granted Afw in respect of the charge under. Section 307/34 of the P.P.C. And the said offence, therefore, does not stand compounded.
31. Consequently the conviction and the punishments recorded against the said two appellants, by the learned trial Court, on the charge under section 307/34 of the P.P.C. Are maintained.
32. In respect of the murders of Abdullah and Nasrullah deceased, Mst. Zubaida and her two daughters have not granted Afw to any of the appellants. Similar is the position of Mst. Hallman who is the sister and an heir of Abdullah deceased.
33. Mst. Sharifan has forgiven only Faqir Muhammad with respect to murder of Abdullah deceased and has refused to compound the, said offence with Ghulam Hussain appellant. Abdul Ghani his granted pardon to both the appellants in respect of both the murders while Mst. Amina being an heir only of Abdullah deceased, has granted. Mw to both the appellants for the said murders.
34. Thus, it is only some of the heirs of the deceased who have granted Afw to the appellants in respect of the murders in question while the widow, the two daughters and a sister have withheld compromise of Abdullah's murder whereas, the mother and two sisters have refused to compound Nasrullah's murder with the appellant.
35. This brings us to the determination of the fate of the convicts where some of the Walis have granted Afw to them while the others have refused to compound the offence in question with them.
36. The provisions of the newly-added clause (b) of section 307 of the P.P.C. Provide that where the Wali had, voluntarily and without duress, to the satisfaction of the Court, waived the right of Qisas and Qisas for Qatl-e-Amd was not enforceable. The effect of this provision has been provided in subsection (2) of section 309 of the same Code, which lays down that however, a victim had more than one Walis, anyone of them could waive his right of Qisas and the Wali who did not so waive his right of Qisas, was entitled to his share of Diyyat.
37. The question which now requires resolution is whether an offender was entitled to be acquitted and let off only by paying the share of Diyyat to the Walis who had not granted Afw to him, if anyone of the Walis had waived his right of Qisas against the said offender.
38. Although the provisions of section 308 of the P.P.C. Are not strictly attracted to the facts of the present case, yet, subsection (2) of the said section dose provide a guideline to us in dealing with such-like cases when it envisages that where an offender was not liable to Qisas and was thus, liable to payment of Diyyat, he could be punished with imprisonment by way. Of Tazeer.
39. As has just been mentioned, the case in hand was not being governed by the provisions of the said section 308 of the P.P.C. Nevertheless, clause (c) of section 302 of the said Code was available to regulate cases like the one before us, as it provides that where the punishment of Qisas was not applicable according to the Injunctions of Islam, the offender could be punished with imprisonment of either description for a term extending upto 25 years.
40. But before any final decision could be taken on this question, it shall have to be seen whether an offender could be punished under a provision of law which did not exist when the offence in question had been committed.
41.The first obstacle could be visualized in the form of Article 12 of Constitution, which prohibits punishment of a person for an act or omission which was not punishable by law at the time of the act or omission or for an offence, by a penalty greater than or of a kind different from the penalty prescribed by law for that offence at the time offence was committed.
42. A bare perusal of the said Article 12 of the Constitution would demonstrate that punishment of an offender under section 302(c) of the P.P.C. In the present case was not hit by the said Article because the offender was neither being punished for an act or omission which was not an offence when the same had been committed 'or omitted, nor is the penalty of imprisonment provided by section 302(c) of the P.P.C. Greater than or of a kind different from, the penalty prescribed by the provisions of section 302 of the P.P.C. Since repealed. Needless to mention that the maximum penalty provided by section 302 of the P.P.C. As it stood, when the present occurrence had taken place, was punishment of death and the alternate punishment, was that of imprisonment for life.
Section 302(c), in its present form, provides a maximum sentence of 25 years imprisonment which is neither greater than the sentence provided by the repealed section nor is the same different in kind from the punishment i,e, imprisonment for life as envisaged by the provisions, since repealed.
43. Section 338-H(1), makes, inter alia, section 309, which relates to the grant of Ufw, applicable to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance VII of 1990 and to the offence committed before such commencement. Section 338-F further provides that while applying the provisions of this newly added Chapter of the P.P.C. Which includes all the above-mentioned provisions of the said Code and in respect of matters ancillary or akin thereto, the. Courts were to be guided by the Injunctions of Islam as laid down in the Holy. Qur'an and the Sunnah.
44. By virtue of section 338-H, the provisions of the newly-substituted sections which had been made applicable, to the offences committed prior to the enforcement of these provisions were the provisions of section 309 of the P.P.C. The said section 309 is not a complete Code in itself as it only lays down that right of Qisas shall not be enforced against an offender who had been granted Afw by any Wali of the victim and further that the Walis who elected not to grant such an Afw to such an offender, were entitled to the payment of their share in Diyyat. The said section does not provide any consequences after the grant of Afw by a Wali and after payment of their share in Diyyat to the Walis who are not prepared to forgive the offender.
45. Thus, of necessity, one has to look for Injunctions of Islam to determine the ultimate fate of such an offender as section 345 of the Cr.P.C., was also of no assistance in the matter because the same was not attracted to the facts of the present case.
46. The Injunctions relevant for the purpose are before us in a codified form as contained in section 302(c) above-mentioned and which provide that where punishment by way of Qisas was not applicable, the offender could, be punished with imprisonment upto 25 years.
47. Consequently, we hold that in view of the fact that some of the Walls of Abdullah and Nasrullah deceased had granted Afw to the present appellants, the sentences of death could not be enforced against them but they would be liable to pay, to the Walis, not granting Ufw, their share in Diyyat and further that the said appellants would also be liable to be punished with imprisonment extending upto 25 years by way of Tazeer, according to the Injunctions of Islam as evidenced by the provisions of section 302(c) of the P.P.C.
48. The heirs of Abdullah deceased who have not granted Afw to the appellants are his widow, Mst.
Zubaida, his two daughters, Mst. Bilqis and Mst. Hanifan and his sister Mst. Haliman. Their shares in Diyyat, as calculated according to Shariah are Rs,21,900 for the widow, Rs,1,16,800 for the two daughters which they shall share equally and Rs,4,100 for the sister of the said deceased.
49. We, consequently, direct that each of the two appellants shall pay the said amounts of money to the said heirs within a period of three years which payment shall be enforceable in terms of the provisions of section 331 of the P.P.C.
50. In respect of the murder of Nasrullah deceased, the share of Mst. Zubaida, being his mother was Rs,29,100 while the share in Diyyat of Mst. Bilqis and Mst. Hanifan being his sisters was Rs,1,16,800 which the two shall receive in equal shares. It is directed that each appellant shall pay the above amounts of money to the said heirs within a period of three years which payment shall be enforceable in terms of the provisions of section 331 of the Pakistan Penal Code.
51. It is further directed that since Mst. Bilqis and Mst. Hanifan are minors, the amounts of money payable to them shall be deposited, in accounts to be opened in a scheduled Bank, in their respective names. The two appellants had murdered the husband and a one and a half years old son of Mst. Zubaida who was a real sister of Ghulam Hussain appellant and a first cousin of Faqir Muhammad appellant. They had also injured the said Mst. Zubaida and her six months old suckling daughter by throwing acid on them. This was a brutal and a callous act on the part of the appellants which hardly warranted any sympathy or leniency for them.
52. Therefore, it is directed that in addition to the payment of Diyyat, as above ordered, each one of them shall also suffer twenty years (20 years), R.I. As visualized by the Injunctions of Islam codified through section 302(c) of the P.P.C. On each count for the said two murders.
53. It is further ordered that all the sentences of imprisonment awarded to the appellants i,e, the sentences under section 307/34, P.P.C. And the ones under section 302(c), P.P.C. Shall run concurrently and the benefit of the provisions of section 382-B of the Cr.P.C. Shall also be allowed to them.
54. Murder Reference No,9 of 1989 and Criminal Appeal No,100 of 1989 are disposed of in the above terms.