FAZLUR REHMAN KHAN, J.---This criminal Appeal is directed against the judgment/order dated 29- 6-2000 of the learned Additional Sessions Judge, Abbottabad, whereby he acquitted respondent No,1, under sections 302/324/34, P.P.C. And instead convicted him under section 311, P.P.C. And sentenced to undergo 10 years' R.I. As Ta'zir and also directed to pay Rs,46,666 as share of the appellant in the Diyat amount of the deceased in case F.I.R.No,109, dated 10-12-1998 of Police Station Sherwan.
2. According to the prosecution version as contained in the F.I.R. Exh.PA is that on the day of occurrence, Khan Bahadur (accused-respondent No,1 herein and hereinafter called the respondent) sent a complaint to complainant Mst. Resham Jan (P.W.3) that her women-folk had cut fire-wood from his Dhaka Rakh. However, on the evening of the night of occurrence, her daughter-in-law, Mst. Fazilat Jan wife of Umar Khan, Mst. Maimoona Umar and Mst. Farrukh Naz daughters of Umar Khan, returned the complaint of the respondent by going to his house informing him that they had not cut any fire-wood from his Dhaka Rakh. In the meantime, Mst. Noor Nishan wife of the respondent and his daughter-in-law Mst. Kulsoom, wife of Azim Khan (co-accused and since acquitted) started abusing the women-folk of the complainant and also pelted stones at them, on account of which, both the complainant and his son Shaukat were attracted to the spot.
In the meantime, both the co-accused Mst. Noor Nishan and Mst. Kulsoom asked the respondent to strike at the complainant party, on which, he rushed to his home, brought a .12 bore shot-gun, started firing at them with which Mst. Fazilat Jan, Mst. Farrukh Naz, Mst. Maimoona and Shaukat received injuries, fell to the ground and died on the spot. Luckily the complainant escaped unhurt.
3. On completion of the investigation, challan against the respondent and his co-accused was submitted in Court. They were charged under section 302 (four counts)/324/34, P.P.C. To which they pleaded not guilty. In the meantime, all the legal heirs of the four deceased entered into compromise with the accused respondent except Mst. Khanum Jee appellant herein, who is the mother/one of the legal heirs of Mst. Fazilat Jan deceased. Accordingly, all the accused were put to trial under the foregoing charges and on conclusion, the co-accused were acquitted. However, the respondent was convicted as stated earlier.
4. The appellant is aggrieved by the judgment/order of the learned Additional Sessions Judge, Abbottabad, on the ground that the punishment awarded to him is not in consonance with law and requires enhancement.
5. We have heard Mr. Fazal-e-Haq Abbasi, Advocate for the appellant, Mr. Ghulam Younas Khan Tanoli, Advocate for the State and Mr. Muhammad Aslam Khan, Advocate for the respondent and have also perused the record.
6. The only question which in the present appeal falls for determination is that as to whether on the refusal of Mst. Khanum Jee, mother and one of the legal heirs of Mst. Fazilat Jan deceased, the learned trial Court while convicting the respondent under section 311, P.P.C. Was justified in sentencing him to undergo 10 years' R.I. And to pay Rs,46,666 a part of Diyat amount of her daughter or his punishment requires enhancement.
7. In support of the appeal, the learned counsel for the appellant contended that keeping in view the facts and circumstances of the case, the respondent should have been given a full doze of punishment under section 302, P.P.C. In support of his argument he placed reliance on (1) 1997 SCM R 425 (2) PLD 2003 Supreme Court 635 and (3) 2004 PCr.LJ 530.
8. On the other hand, the learned counsel for the respondent submitted that all the major legal heirs of the four deceased except the appellant have waived their rights of Qisas and have forgiven the respondent in the name of Allah without payment of any Diyat whereas the shares of minors in their Diyats have been deposited in Court and as out of five legal heirs, the appellant alone is contesting the case and has challenged the propriety of the punishment of the respondent, therefore, keeping in view all the facts, circumstances of the case and in the best interest of the parties, the punishment awarded by the learned Sessions. Court to the respondent is quite in accordance with law and needs no further enhancement. In support of his arguments, he placed reliance on 2003 SCM R 561.
9. We have gone through the authorities cited by the learned counsel for the appellant and find that these are not relevant to the issue. In the case reported in 1997 SCM R 425 the accused was convicted under section 302, P.P.C. And sentenced to death with a fine of Rs,30,000 or in default to undergo three years R.I. But on appeal the Lahore High Court reduced the death sentence of the appellant to imprisonment for life on account of compromise between him and the legal heirs of the deceased except his mother and on leave to appeal a prayer was made that the appellant be allowed to compromise the offence with the legal heirs of the deceased. However, their Lordships of the Hon'able Supreme Court of Pakistan while rejecting the application, observed that: "Since the mother of the deceased had not joined the compromise and as the High Court has ordered the death sentence into imprisonment for life which could be awarded as Ta'zir and not as a Qisas, S.309(2), P.P.C. Could not be pressed into service."
10. Similarly, in the case reported in PLD 2003 Supreme Court 635, the accused was sentenced to death under section 302, P.P.C. With a fine of Rs,50,000 and a prayer, in the end of arguments, was made that since one of the legal heirs, namely, the husband of the deceased has entered into compromise with the accused/petitioner, the sentence may be reduced but the Hon'able Supreme Court of Pakistan rejected this plea and held that: "This Court had already settled this matter in Sheikh Muhammad Aslam v. Shaukat Ali alias Shuka 1997 SCM R 425 also reported in 1997 SCM R 1307 holding that the concession aforesaid is applicable only in a case where the sentence is awarded as Qisas and not in a case where the death sentence is awarded as Ta'zir."
11. In the case reported in 2004 PCr.LJ 530, the accused were 'convicted under section 302,. P.P.C.
And sentenced to death with a fine of Rs,50,000 each for the murder of one Habib-ur-Rehman. One of the sons of the deceased entered into compromise with the petitioners and an application was filed before the learned trial Court that on account of compromise of one of the legal heirs of the deceased, the death sentence may be altered into alternate sentence. However, the learned trial Court rejected this application on the ground that the widow and other legal heirs who were major have denied the compromise. And on revision, the Hon'able High Court upheld the order of the learned Sessions Court with the observations that the .Sessions Court in the circumstances while acting in accordance with law had rightly dismissed the application of the accused for setting aside their death sentences and imposing alternate sentences.
It will thus be seen that in the above cited cases, wherein punishments were awarded as Ta'zir, partial compromises were not allowed to absolve the accused of their liabilities. However, in appropriate cases, partial compromise was allowed to be a mitigating circumstance for lesser punishment but the quantum/propriety of punishment -did not come up for consideration, as such, these cases are distinguishable.
12. Now coming to the arguments of the learned counsel for the respondent, we find that in the case cited by him, the accused-petitioners were convicted and sentenced to death under section 302/34, P.P.C. By the learned Additional Sessions Judge, Faisalabad and on Reference/appeal their death sentences were confirmed by the Hon'able Lahore High Court. During the pendency of leave to appeal, the father and one daughter of the deceased entered into compromise but the other daughter refused, on account of which, the Hon'able Supreme Court of Pakistan converted the death sentences and convicted both the accused under section 311, P.P.C. And sentenced them to undergo 12 years' R.I. With direction to pay Diyat amount of Rs,1,12,156 to the said second daughter of the deceased. This authority is quite relevant to the facts of the present case and in view of the same and on the facts of the present case, we do not see any reason for any enhancement of the punishment of the respondent.
13. Accordingly, this appeal fails and is hereby rejected.