' SH. HAKIM ALI, J.---Common question, which has been raised and posed for resolution in the following cases:--
(1) Cr. M. No.1140-M of 2000/BWP (Muhammad Ibrahim and another v. The State);
(2) W.P. No.3023 of 2002/BWP (Majid Mahmood v. The State and 3 others); (3)W.P. No.3024 of 2002/BWP Mst. Shahnaz Kausar v. The State and 2 others); and (4)Cr. Revision No.6 of 2003/BWP (Fazal Ahmad v. The State and 2 others); ' Is---- Whether the compounding/ compromise by any of the heirs of the victim, after conviction of the accused having been recorded and upheld up till the apex Court, can grant benefit to the accused for conversion of his death sentence to other kind of imprisonment/ punishment, lesser than the death?
OR Whether partial compromise/ compounding can be accepted and sentence converted by learned trial Court under section 338-E(2) of the P.P.C. After judgment of death sentence having attained finality from the apex Court of the country?
2. Since common question and law point is involved in all the above mentioned cases, therefore, we propose to unravel this controversy and dispose of all these cases together through this singular judgment.
3. The facts necessary for the disposal of these cases are given hereunder separately.
'
1. Cr. M. No. 1140-M-2000/BWP.
' In case F.1.R. No. 77, dated 25-3-1993, lodged under sections 302, 449, 148 and 149, P.P.C. At Police Station City Chishtian, District Bahawalnagar, Muhammad Ibrahim alias Dhouli son of Khadim Hussian and Muhammad Yasin alias Munna son of Abdul Majeed, both Cheena by caste and residents of Mauza Mari Shauq Shah, Tehsil Chistian, District Bahawalnagar were tried along with Muhammad Amin, Muhammad Jafar and Abid Hussain (since acquitted) for committing Qatl-e- Amd of Mst. Sakina Bibi and Mst. Anwar Bibi, and convicted under section 302, P.P.C. And were sentenced to death on 26-12-1995. The appeal filed before this Court bearing No.1-1996/BWP (Muhammad Ibrahim and another v. The State) was dismissed on 19-11-1998. The conviction and sentence was maintained in Cr. Appeal No. 586-L of 1998 from the Hon'ble Supreme Court of Pakistan on 19-7-1999. It is stated that mercy petition was filed but it was also rejected. In the above noted case, two ladies, namely Mst. Sakina Bibi and Mst. Anwar Bibi were callously murdered. Both these ladies left behind them the following legal heirs.
' Mst. Sakina Bibi, deceased.
(1) Nazar Muhammad (brother);
(2) Mst. Sarwar Bibi (daughter);
(3) Mst. Shamim Bibi (daughter);
(4) Mst. Shamshad Bibi (daughter);
(5) Mst. Ghulam Fatima (sister);
(6) Mst. Fazlan Bibi (sister);
(7) Mst. Sharaf Elahi (sister). Mst. Anwar Bibi, deceased.
(1) Khadim Hussain (Uncle);
(2) Abdul Majeed (uncle, since dead);
(3) Mst. Sarwar Bibi (sister);
(4) Mst. Shamim Bibi (sister);
(5) Mst. Shamshad Bibi (sister);
(6) Mst. Shaib Bibi -(real paternal aunt); and
(7) Mst. Mariyam Bibi (real paternal aunt).
' The above-noted convicts, after having failed to get their conviction and sentence set aside on merits, decided to try their luck by effecting compromising with the legal heirs of the deceased and they also succeeded in effecting compromise with some of the legal heirs. Therefore, they moved an application under section 338 (E)(2), P.P.C. Before the learned Sessions Judge, Bahawalnagar on 13-9-1999 for recording compromise. Since Mst. Sarwar Bibi, Mst. Shamim Bibi and Mst. Shamshad Bibi (daughters) of Mst. Sakina Bibi, (deceased and sisters of Mst. Anwar Bibi, deceased), had not compromised with the convicts, therefore, the learned Sessions Judge declined to accept compromise and through his detailed order, dated 23-10-2000, by applying the provisions of section 345 of the Cr.P.C. Dismissed the application of the convicts. Hence, this criminal miscellaneous.
2. W.P. No.3023-2002/BWP and
3. W.P. No. 3024-2002/BWP.
' Majid Mahmood son of Ghulam Nabi, caste Bhatti, resident of Street No.10, Mohallah Farooqabad, Bahawalnagar and his co-accused, Saeed Ahmad alias Chuchi were tried in case F.I.R. No.117, registered at Police Station City, Bahawalnagar for the murder of one Muhammad Zafar by the learned Judge, Anti-Terrorism Court, Bahawalpur. Majid Mahmood was convicted under section 302/34, P.P.C. And was sentenced to death. He was convicted and sentenced under some other provisions of Pakistan Penal Code also in the same' case. The death sentence was confirmed by the Division Bench of this Court on 31-1-2000. Appeal filed by the convict before the Hon'ble Supreme Court of Pakistan bearing No.77-L-2000 was also dismissed on 12-9-2001 and the sentence of death was maintained. Thereafter, the convict effected compromise with Mst. Shahnaz Kausar, widow of the deceased and moved an application under section 338-E, P.P.C. Read with section 345, Cr.P.C. For compounding of the offence. The father of the deceased did not enter into compromise with the convict. The learned Judge, Anti-Terrorism Court, Bahawalpur, after appreciating the law and facts, dismissed the application vide his order, dated 7-8-2002.
Aggrieved thereby, both the convict and the widow of the deceased, namely Mst. Shahnaz. Kasuar, have filed two separate writ petitions i.e. W.P. No.3023-2002/BWP and W.P. No.3024-2002/BWP for the acceptance of compromise.
4. ' Cr. Revision No. 6-2003/BWP.
Fazal Ahamd alias Fazla son of Ahmad Bakhsh, Caste Channer, resident of Mauza Posti, Tehsil Ahmadpur East, District Bahawlalpur was put to trial along with his co-accused Mukhtar Hussain; Karim Hussain and Fida for murder of Rasool Bakhsh, reported through F.I.R. No.338 of 1995, registered with Police Station Musafir Khana, District Bahawalpur under section 302/34, P.P.C. Trial culminated, through judgment, dated 26-6-1999 of the learned trial Court, into conviction of Fazal Ahmad alias Fazla under section 302, P.P.C. And he was sentenced to death. However, his co- accused were acquitted of the charge. The death sentence was confirmed by this Court on 20-7- 20b1, delivered in Cr. Appeal No.104-1999/BWP and Murder Reference No.26-1999/BWP. The judgment of this Court was upheld by Hon'ble Supreme Court in Jail Petition No.114-2001, vide judgment, dated 18-3-2002. Thereafter, the convict effected compromise only with widow of Rasool Bakhsh, deceased, namely Mst. Zahoor Mai. An application was filed by Mst. Zahoor Mai under section 338-E of the P.P.C. Read with section 345(2), Cr.P.C. As the compromise was not effected by all the legal heirs of the deceased, therefore, the learned Additional Sessions Judge vide his order, dated 13-12-2002, dismissed the application moved by Mst. Zahoor Mai, against which order, the instant criminal revision has been filed by Fazal Ahmad alias Fazla.
4. Learned counsel appearing on behalf of the convicts-petitioners and the heirs of the victims, who have forgiven entered into compromise with the convicts, have submitted their cases with the following arguments:--
(i) As the provision of section 302(a), P.P.C. Is not attracted to all the cases mentioned above, therefore, the cases of the convicts are to be considered to have been awarded punishment under section 302(b) of the P.P.C., in which although punishment of death has been provided yet imprisonment for life as `Ta'zie has also been authorized to Courts to be awarded to an accused. As the convicts have been convicted under section 302(b) of the P.P.C., therefore, their cases can be decided under section 338-E of the P.P.C. By the learned trial Court, with regard to waiver, compounding or awarding of sentence under section 310, P.P.C., before or after passing of any sentence. According to the learned counsel appearing on behalf of the petitioners, partial compromise or in other words composition/compromise by one out of many heirs can be considered for the purpose of reduction of sentence treating it to be a mitigating circumstance. It is not necessary that all the legal heirs must have consented to the compromise or have waived their rights of `Qisas'. A single heir can compound and due to effecting of compromise by him with the convict or convicts, the death sentence can be converted to that of punishment as `Ta'zie in the shape of imprisonment for life, etc. They have referred to the following case-law:-- ' NLR 1993 Criminal 203 (Ghulam Hussain and another V. The State); 1994 PCr.LJ 1587 (Nisar Ahmad and 2 others v. The State); 1999 SCMR 933 (Khalid Nawaz v. The State); 2001 YLR 137 Raashid Mahmood and others v. State); PLD 2001 Pesh. 58 (Nusrat Shah v. Muhammad Shah and another); 2002 SCMR 1455 (Ijaz Hussain v. The State); 2003 PCr.LJ 760 (Lahore) Imran Shah v. The state); 2003 SCMR 561 (Amir and another v. The State); 2003 YLR 1079 (Zulfiqar alias Zullah and others v. The State); 2003 PCr.LJ 998 (Mukhtar Ahmad alias Mukhoo v. The State); 2003 PCr.LJ 554 (Lahore)
(Zaighum through his mother and others v. The State and others); 2003 PCr.LJ 1331 (Lahore)
(Muhammad Yasin v. The State); and NLR 2004 (Criminal 729 (Farooq Azam v. The State).
(ii) According to the learned counsel, Mr. Abdur Rahman Tayyib, Advocate, the word "all" has been imported in Column No.3 of subsection (2) of section 345 of the Cr.P.C., through judgments of the Courts. According to the learned counsel the word "heirs" does not connote and cannot be interpreted for "all heirs". The word "heirs" was used in section 345 of the Cr.P.C. As to created a distinction between the heirs and the relatives. The aim and purpose of the use of word "heirs" was to exclude the relatives and to grant a right to the heirs of the victim alone to effect compromise or to forgive the right of "Qisas. He has also referred to Pages 368 and 369, Volume IX, Fatawa Hindia, Kitabul Janayab Panjum Sulh-wa-Afv of Urdu version of Fatawa Aalamgiri, in which one of the heirs if makes compromise upon any amount/ property or forgives, then the right of "Qisas" for and of the other heirs, who are not compromising is also abated and the others would be entitled only for "Diyat", as they are legally entitled to it.
(iii) They have also referred to the provisions of section 307 of the P.P.C., according to which, in clause (b) of subsection (1) of section 307, P.P.C., any "Wali" can compound/waive the right of "Qisas".
(iv) Referring to subsection (2) of section 309 of the P.P.C., it has also been stated by the learned counsel that according to that section, even one "Wali' can waive his right of "Qisas" and in case of waiver or making of compromise by anyone "Wali", the right of "Qisas" of others does not remain in the field.
(v) They have also called our attention to the provisions of section 311, P.P.C. And have stated that no difference can be thought of with regard to the conversion of sentence of an under trial accused or a convict, whose trial has been concluded and sentence has become final, for compounding or waiving the right of "Qisas". It has also been agitated by the learned counsel that provision of subsection (1) of section 338-E, P.P.C. Has to be interpreted in a liberal way because the provisions of sections 309 and 310 of the P.P.C. Have been applied mutatis mutandis to waiver or compounding of the offences.
5. Learned A.A.-G. And the learned counsel appearing on behalf of the respondents have opposed the version/ arguments of the learned counsel for the petitioners by stating that Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked in the cases where the convicts have already exhausted all the legal remedies and have been convicted and sentenced finally. The provision of compromise/compounding for "Qisas" provided for the cases of section 302(a) of the P.P.C. Cannot be applied cases decided under the provision of section 302(b) of the P.P.C. The cases of the convicts if fall within the ambit of section 302(a), P.P.C., then the right of punishment through "Qisas" can be raised and applied. As "Qisas" is found in section 302(a), P.P.C., so while applying the provisions of "Qisas" for Clause (a) of section 302, P.P.C., those provisions cannot be extended, invoked or applied for Clause (b) of section 302, P.P.C. They have referred to Clause (1) of section 299 of the P.P.C. To support their version by stating that word "Ta'zir" means punishment other than "Qisas", "Diyat", "Arsh" or "Daman". Arguing with vehemence, it has been stated by them that difference of power and jurisdiction between the Court of appeal and the Court of extraordinary jurisdiction must be kept in view while deciding the case of a convict and that of an accused. They have referred to PLD 2003 Supreme Court 512 (Muhammad Saleem v. The State), 2004 SCMR 236 (Bashir Ahmad v. The State and another) and 2004 PCr.Lr 1884 (Saeed Akhtar v.
Muhammad Anwar and another).
6. Forceful arguments/versions and interpretations put to the words of different sections and the citations referred to by the learned counsel for the parties, have drawn us to the following conclusions:--
(a) Section 302, P.P.C. Has provided different sentences/punishments in case of Qatl-e-Amd. When Qatl-eAmd has been committed and proved through proof provided for "Qisas", then punishment has to be awarded to the convict through Clause (a) of section 302 of the ' P.P.C., which has provided death for death as "Qisas". When a proof provided for "Qisas" for Qatl- eAmd has not been brought on the record, then the Court has been granted power to punish the offender with death or imprisonment for life as "Ta'zir". The third category for punishment is that of Clause (c) of section 302 of the P.P.C., in which case of Qatl-e-Amd, if committed the Court can punish the offender with imprisonment which may extend to 25 years. The Hon'ble Supreme Court has clearly dealt with all these questions and situations in PLD 2003 Supreme Court 512 (Muhammad Saleem v. The State). When a case of an offender is proved through proof of "Qisas", then the death can be awarded as "Qisas". Naturally in that event, the provisions of "Qisas" for compounding and for waiver of right of "Qisas" would apply. The provisions of "Ta'zir" would not be applicable unless made applicable by any Act or Enactment.
(b) During the trial, the punishment can be converted by Court, which is seized of the case, when anyone of the heirs compounds the offence or waive his right of "Qisas", which compromise, wavier or composition can be considered by the learned counsel at the trial, appellate or revisional stages and it may be treated as a mitigating circumstance for an under trial accused provided the other conditions are also fulfilled but when an offender/accused is punished with death under section 302(b) of the P.P.C. And that sentence of death is maintained by the Hon'ble Supreme Court and in the mercy petition also, then that sentence of death cannot be compounded with under section 302(b) of the P.P.C. Unless the conditions provided by section 345 of the Cr.P.C. Are fulfilled, which provides tha heirs of the victim must compromise for Qatl-e-Amd. The interpretation put by Mr. Abdur Rahman Tayyib, the learned Advocate that the word "all" has been imported in section 345 of the Cr.P.C., cannot be accepted because word "heirs" has been used with wisdom. It denotes itself the sense of plurality. It cannot be considered and termed conveying the singular meaning of "an heir". The word "heirs" being plural includes in it the perception of all the heirs of the victim who are to effect a compromise or have to waive their right of "Qisas". Otherwise, the composition/waiver/ Afv cannot work. As the word "heirs" was used in the aforesaid section, therefore, there was no need to prefix the word "all" because the word "heirs" itself signify for more than one. The Entering of word "all" in it would be a superfluous act of the legislature, because the word "heirs" had already contained the meaning of word "all". From the use of word "heirs" the intent of the legislature is clear that one their heir out of more heirs, cannot compound the offence. So, the arguments of the learned counsel for the petitioners are not based on correct interpretation of the provisions of section 345 of the Cr. P .0 .
(c) The citations which have been given over to us by the learned counsel for the petitioners are in fact mostly based on cases before the conviction recorded had not become final. Distinction must be kept in view regarding the proceedings of a murder case at the trial or appellate stage and after its conclusion finally upon and after recording of conviction. The accused who becomes a convict after the final conclusion of a case, would be governed under section 345 of the Cr.P.C. For effecting compromise if it was recorded under section 302(b) of the P.P.C. Because the sentence of death awarded to such a convict has been passed after a considerable discussion, and keeping in view all the circumstances of the case and the mitigating circumstances also. If all the Courts up to the Hontle Supreme Court of Pakistan have maintained the sentence of death, it would convey the impression that case of the offender had required no other course or sentence except the capital punishment. Such sentence awarded cannot be lightly burshed aside by bringing one of the heirs, who may not be nearer to the deceased, but feeling love for the condemned prisoner and interested in getting the conversion of death sentence to the other kind of imprisonment.
Conversion through this method would be against the interest of justice and the weight of the decisions. The compromise/compounding of section 345, Cr.P.C. Is exception, benefit of which has been granted to a convict when he collects the consent of all the heirs of the deceased and gets waived/ compromised his sentence of death or its conversion to other punishment collectively from them. Otherwise the decisions must and should retain their own effects and impacts. The latest law through citations of PLD 2003 Supreme Court 512 (Muhammad Saleem v. The State), 2004 SCMR 236 (Bashir Ahmad v. The State and another) and 2004 PCr.LJ 1884 (Saeed Akhtar v.
Muhammad Anwar and another) has sealed the fate and case of all the petitioners for any more discussion and consideration. As all the heirs of the deceased victims have not admittedly waived and compounded the offence of death awarded to the convicts under section 302(b) of the P.P.C., therefore, all these petitions as are dismissed.
(Sd.)
' SH. HAKIM ALI, J ' MUHAMMAD JAHANGIR ARSHAD, J.---I have gone through the laborious judgment, handed down by my learned brother Sh. Hakim Ali, J., and besides subscribing to the findings and conclusions drawn by my learned brother, I also add the following lines of my own in support of the above conclusions that the abovementioned petitions merit dismissal.
(A) I am at a loss to understand how this Court while sitting in Constitutional jurisdiction can convert the sentence of death recorded by this Court and upheld by the Hon'ble Supreme Court and reduce the same into one for imprisonment for life. It is an established principle of law that this Court in its Constitutional jurisdiction cannot issue any direction within the meaning of Article 199 of the Constitution either to the Hon'ble Supreme Court or even to the High Court as the same is expressly barred by virtue of definition of the word "person" to whom direction under Article 199 of the Constitution can be issued. Sub-Article (5) of Article 199 expressly excludes the Supreme Court and the High Court from the definition of such "person" to whom direction under Article 199 can be issued. In the case of Suleman Ali Haideri and another v. Government of Balochistan and others (2004 SCMR 354), it has been held that no writ can be issued against the High Court, etc.
(B) Learned counsel for the petitioner while arguing in favour of reduction of sentence has laid much stress on the provisions of law governing the sentence of Qisas but has ignored the fact that in all the cases before this Bench, the sentence has been passed as Ta'zir which is not regulated by the Islamic principles of Qisas but are covered by Ta'zir under which the State is authorized .To make the law for providing appropriate punishment to the persons guilty of offences not covered by the requirements of Qisas and the object of such punishment is that if offence though covered under the provisions of Qisas is not strictly proved due to lack of requisite number of witnesses under the law or for some other reason, the said offender should not go unpunished because in such an eventuality the State as well as the society may be in state of chaos an offender would be let unpunished for want of requisite number of witnesses or for some other reason. The argument raised by the learned counsel for the petitioner by invoking and applying the provisions of Qisas to the matter governed by Ta'zir, cannot be extended in the present case because in the case of Qisas if one of the heirs compromises even then the legal heirs not compromising with the accused, are entitled to claim Diyat but in the case of Ta'zir there is no such provision and the compromise can be effected only with the consent of all the legal heirs whether or not they have obtained any compensation.
(C) The argument of the learned counsel for the petitioner that the words "all heirs" have been imported by the Court through various judgments while interpreting the provisions of Column (3) of subsection (2) of section 345, P.P.C., are not warranted by law. The legislature in its wisdom itself used the words to cover all the legal heirs, otherwise, the words "heirs" or "any of the heirs" could have been easily used in the said provisions. This also indicates that legislature wanted to confer right of compromise under Ta'zir to all the heirs and not to few heirs as the legislature was fully aware of the fact that in such an eventuality even a remote heir could have compromised with the accused without taking nearest into confidence and this would have again created another rift among the heirs, especially those heirs who had not compromised. Say for example, if an issueless married woman is murdered, her husband by entering into compromise with the accused without the consent of her father, mother, brother or sister, may forgive the accused causing heart burning to the other heirs of the deceased, especially, her mother and father. This clearly indicates requirement of consent of all the heirs in case of compromise when sentence is passed under Ta'zir, was made consciously and deliberately so as to avoid any conflict among the legal heirs. If it is with the consent of all this will put the matter to an end for all the times to come but in case one of the legal heirs is allowed to forgive the accused without associating the other legal heirs, the object of creating harmony in the society as well as in the family of the deceased and the accused, would be frustrated and this could never have been the object of law for requiring the consent of all the legal heirs for the purpose of compromise in case of punishment under Ta'zir.
(D) Arguments advanced by Mr. A.R. Tayyab, Advocate for one of the petitioner by placing reliance on Fatawa Hindia, Kitabul Janayab Punjum Sulh-wa-Afv of Urdu version of Fatawa Alamgiri, are also of no help to him for the simple reason that these books also talk of right compromise under Qisas and not one relating to Ta'zir. This Court cannot extend benefit under Qisas to those under Ta'zir for the reason that in case of Qisas the criteria for punishment is not only different but inflexible and in such eventuality the Court has no option but either to acquit the accused or to inflict him the maximum sentence of death as required under section 302(a), P.P.C. But in case of punishment as Ta'zir, Court has the option either to punish the offender with death or imprisonment for life, keeping in view the facts and circumstances of the case. This watertight compartment between the sentence awarded under Qisas and also- under Ta'zir leaves no doubt that while deciding the question of compromise in case -of Qisas and Diyat, both the matters are to be decided on different footings as well as provisions of law, hence, the arguments of the learned counsel that case of - punishment under Ta'zir be also decided by applying the criteria of compromise in case of Qisas, is not only inapt but- also violative of the provisions of section 302(a) and (b) of the P.P.C. And this Court while sitting in Constitutional jurisdiction cannot adopt the view taken by Mr. A.R. Tayyab, Advocate.
(E) The learned counsel while arguing in favour of reduction of sentence on the touchstone of Qisas has ignored the fact that the Hon'ble Supreme Court of Pakistan in the cases cited in para-5 of this judgment, has in expressed terms declared that, where case has been decided under Ta'zir, consent of all the legal heirs for compromise is necessary and a single legal heir can neither enter into compromise nor the Court can give legal effect to such a compromise and the punishment recorded, under Ta'zir shall remain intact. Beside, the abovementioned judgments, an elaborated judgment of the Hon'ble Supreme Court in the case of Sh. Muhammad Aslam and another v.
Shaukat Ali alias Shauka and others (1997 SMCR 1307) is also supportive of the conclusions drawn by my learned brother.
(F) Lastly, Mr. A.R. Tayyab, Advocate has tried to make out a case that this Court should declare the provisions of section 345(2) Column (3), as against the Injunctions of Islam in the light of the arguments advanced by him. We are afraid that this Court while sitting in Constitutional jurisdiction can give such a declaration whereas, such jurisdiction is exclusively vested in the Federal Shariat Court under Article 203(D) of the Constitution of Islamic Republic of Pakistan, 1973.
So , if the petitioner feels that said provisions are violative or repugnant to Injunctions of Islam as laid down by Holy Qur'an or the Sunnah of Holy Prophet (p.b.u.h.), he may if so advised, approach the Federal Shariat Court to get the same declared as such.
' I, therefore, agree with the conclusions recorded by my learned brother Sh. Hakim Ali, J. That all these petitions merit dismissal which are dismissed as such.