Kh. Muhammad Sharif, J.--Through this Constitutional petition, petitioner Mst. Bashiran Bibi has prayed either for conversion of sentence of death of her husband/convict Mukhtar Ahmad son of Imam Din into life imprisonment or complete acquittal on the basis of partial compromise arrived at between the said convict and one of the legal heirs, namely, Maqsood Ahmad Sajid, a real brother of deceased Zulfiqar son of Imam Din. The convict Mukhtar Ahmad was tried by the learned Special 'Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Lahore and was convicted under Sections 302/324/34 and sentenced to death and three years RI with fine of Rs, 5;000/- as Daman under Section 337-F(iii) PPC. His Crl. Appeal No, 936/99 was dismissed by a learned Division Bench of this Court vide judgment dated 12.9.2000 while his Criminal Appeal No, 591/2000 was dismissed by the August Supreme Court of Pakistan vide judgment dated 4.4.2002. Convict's Review Petition No, 29/2002 was dismissed by the Hon'ble Supreme Court while on his Mercy Petition filed on the basis of compromise, the President of Pakistan was pleased to extend the date of execution till today i,e, 1.4.2005.
2. Learned counsel for the petitioner, in support of this writ petition, submits that one of the legal heirs of the deceased, namely, Maqsood Ahmad Sajid (real brother) has entered into a compromise with the convict who has been sentenced to death; that the execution of sentence of death cannot be executed in view of the compromise; that the case of the petitioner is covered by Section 307(b) PPC and that while convicting the accused, the learned trial Court has not mentioned whether the sentence was under sub-section (a) or (b) to Section 302 PPC. He has placed reliance on Ghulam Hussain and another vs. The State (NLR 1993 Criminal 203) and Sikandar Hayat and another vs. Allah Ditta and 9 others (2004 P.Cf.L.tL 530) in support of the above submissions.
3. On the other hand, the learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana submits that there is a plethora of law on the point that on the basis of partial compromise in Tazir cases, the compromise cannot take place.
4. We have heard learned counsel for the parties at a great length especially to the entire satisfaction of the petitioner's learned counsel Ch. Naseer Ahmad Bhutta, Advocate and have also gone through the case law relied upon by him in support Of this submissions. In the instant case, convict Mukhtar Ahmad was awarded death sentence, the judgment of the learned trial Court was affirmed by a learned Division Bench of this Court, his Appeal before the Hon'ble Supreme Court" of Pakistan and Review Petition were dismissed while on his Mercy Petition before the President of Pakistan, date of execution was extended till today i,e, 1.4,2005.
5. Now through this Writ Petition, it has been brought to the notice of this Court that only one legal heir of the deceased has entered into a compromise, namely, Maqsood Ahmad whose affidavit has been placed on record. The case law relied upon by the learned counsel for the petitioner is of no avail to him because the facts and circumstance in the said cases are distinguishable and those are not applicable in case in hand. So far as argument of the learned counsel for the petitioner that the learned trial Court has not mentioned whether the conviction is under sub- section (a) or sub-section (b) of Section 302 PPC, we note that the provisions of Section 304 PPC have not beet, invoked in this case, therefore, the sentence of the convict would be under Section 302(b) PPC and not ,under Section(a) PPC because in the facts and circumstances of this case, the sentence which can be awarded in the case would be only Tazir and not Qisas.
6. According to the list of legal heirs given on the opening sheet of the writ petition there are also ten other legal heirs who have not compromised the offence, meaning thereby that the compromise is , partial and not complete which cannot help the convict. In this regard we are fortified our view with a judgment of the August Supreme Court in Muhammad Saleem vs. The State (PLD 2003 Supreme Court 512), wherein, at page 517, the Apex Court of the country observed as under:-- "....It is settled law that if the offender has been punished under Tazir, the provisions of Sections 309 and 310 would not apply in such a case. A case of similar nature came under consideration before a Full Bench of this Court in Sh. Muhammad Aslam and another vs. Shaukat Ali alias Shauka and others (1997 SCM R 1307) and on thorough scrutiny of the law and the Islamic provisions thereof it was held that where the accused has been awarded sentence for murder as Tazir and not as Qisas, one of the legal heirs cannot waive his right of Qisas, compromise the offence or accept Badl-e-Sulk.
11. In view of the amendment in Section 345(2) Cr.P.C., the death sentence awarded for murder as Tazir can be compounded by all the legal heirs of the deceased with the permission of the Court concerned. In the present case only one of the legal heirs of the deceased has compromised with the petitioner and the rest of the heirs have been opposing the compromise, therefore, punishment awarded under Section 302(b) PPC can neither be compounded in absence of other legal heirs nor provisions of Section 309(2) PPC can be-pressed into service in such a case".
We further fortify our view with yet another judgment of the Apex Court of the Country reported in Bashir Ahmad vs. The State and another (2004 SCM R 236), wherein, the August Supreme Court of Pakistan concluded as under:-- We have considered the contentions raised by the learned counsel for the petitioner. and find that the provisions referred to above 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 vs. Shaukat Ali (1997 SCM R 1307) that 'where an accused person has been awarded sentence for murder as Tazir and not Qisas, the legal heirs cannot waive or accept Badal-e-Sulh'. 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 to be his daughter, would not save him from death penalty.
The petitioner was awarded death sentence under Section 302(b) PPC as Tazir, therefore. he cannot be extended the benefit of provisions of Sections 308 and 310 PPC even for the purpose of lesser sentence on the ground that one of the Wali of the deceased has forgiven him".
7. The afore-referred resume of facts would lead to an irresistible conclusion that the compromise by only one legal heirs of the deceased in this case would not advance the case of the convict Mukhtar Ahmad especially in view of the fact when we have held above that the conviction of the convict would be under Tazir (under Section 302(b) PPC) and not under Qisas. We have touched every angle of the case because of the sensitivity of the case but have found nothing in favour of the convict. Therefore, in the facts and circumstances of this case and respectfully following the dictum laid down by the August Supreme Court of Pakistan in the judgments quoted above, it can safely be said that partial compromise cannot take place in this case. Resultantly, we find no merit in this Constitutional petition which is hereby dismissed in limine.