' FAQIR MUHAMMAD KHOKHAR, J.--- This appeal by leave of the Court, is directed against judgment, dated 28-2-2001, passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal Appeals Nos.25 and 63 of 1994 and Murder References Nos.17 and 18 of 1994.
2. The complainant Abdul Hameed P.W.6 lodged F.I.R. No,712 dated 18-11-1991 (Exh.P.G.) against the appellants, at Police Station Jaranwala, District Faisalabad, for offences under sections 302/324/452/ 148/149, P.P.C., for the murder of five persons namely Rehmat Khan, Mst. Sughiran Bibi, Muhammad Aslam, Manzoor Hussain and Altaf Hussain deceased and for causing injuries to Mst.
Maryam Bibi P.W.7 and Mst. Nasim Akhtar, P.W.B. He stated therein that on 18-11-1991 at 4-00 a.m. He along with Muhammad Ahmed was present in Square No,3. The convict-appellants Muhammad Jamil, All Asghar sons of Muhammad Saleem, Muhammad Saleem son of Rehmat Khan deceased and Ghulam Hussain armed with Churries and Nash Ahmed son of Muhammad Saleem armed with Datar, passed from there. They proceeded to Killa No,34, Square No,13 where Rehmat Khan son of Dolu, Manzoor Hussain and Altaf Hussain were asleep in the maize crop. He and Muhammad Ahmed followed them as the appellants had strained relations with Rehmat Khan etc. They saw that the appellants Muhammad Jamil and All Asghar were causing Chhuri blows respectively on the neck and belly of Rehmat Khan while other appellants Naseer Ahmed, Muhammad Saleem and Ghulam Hussain caused injuries with their respective weapons on his left ear, right thigh, chest and neck who fell down and succumbed to the injuries at the spot. The appellant Naseer caused injuries on the neck of Manzoor Hussain with Datar. Muhammad Saleem, Ghulam Hussain, Muhammad Jamil and Ali Asghar respectively caused Chhuri blows on his chest, abdomen, hand, left knee, left arm, right buttock and back who also succumbed to the injuries at the spot.
Muhammad Jamil cut the neck of Altaf Hussain while Ali Asghar, Muhammad Saleem and Ghulam Hussain caused injuries with Chhuries. Naseer inflicted Datar blows hitting him on his left side of ear, right buttock right wrist, back left shoulder and left side of abdomen who also succumbed to the injuries at the spot.
3. Thereafter, all the appellants proceeded to the house of the Muhammad Aslam deceased. The complainant and other eye-witnesses followed them. The appellant Muhammad Jamil scaled over the wall of the house of Muhammad Aslam and opened its main gate from inside whereupon the other appellants entered the house. Naseer and Ali Asghar caught hold of Mst. Saghiran Bibi wife of Muhammad Aslam by her legs. The appellant Muhammad Jamil cut her throat while Ghulam Hussain caused Chhuri blows on her belly who also succumbed to the injuries then and there.
Muhammad Aslam deceased was overpowered by the convict-appellants whereupon Naseer dealt a Datar blow on his neck whereas All Asghar, Muhammad Jamil, Muhammad Saleem and Ghulam Hussain caused Chhuri blows on his belly, head, chest, right ear, wrist arm, and buttock who also died of the injuries instantaneously. Mst. Maryam Bibi P.W.7 and Mst. Naseem Akhtar P.W.8, daughters of Muhammad Aslam deceased came out of their rooms to save their father .And mother. The appellants also caused them injuries with their respective weapons. The complainant stated that Taj Din and Muhammad Sharif, P.Ws. Had also seen the occurrence in the light of electric bulb. The alleged motive for the offence was that Rehmat Khan Deceased had alienated 6- 1/4 acres of his land in favor of his daughter Mst. Saghiran Bibi deceased and the remaining land in the name of his wife and daughters thereby depriving his son Muhammad Saleem the convict appellant.
4. After investigation, the police submitted two challans and sent up the appellants to face the trial.
The appellants were tried by the Additional Sessions Judge, Faisalabad, for offences under sections 302/324/452/148/149, P.P.C. The trial Court, by separate judgments dated 9-1-1994 convicted them under section 302 Part-I, P.P.C. And sentenced each of them to death as Qisas for the murder of Altaf Hussain, Manzoor Hussain, Rehmat Khan. They were further burdened with compensation of Rs, 20, 000 each payable to the legal heirs of the above-said deceased. For the later occurrence, they were convicted under section 302 Part-I/148, P.P.C. And sentenced them to death as Qisas for the murder of Mst. Su, hiran Bibi and Muhammad Aslam. They were further convicted and sentenced to undergo R.I. For a term of 14 years each under sections 324/148, P.P.C. For causing injuries to Mst. Maryam Bibi P.W.7 and Mst. Naseem Akhter, P.W.B. They were also sentenced with a fine of Rs,20,000 each and in default of payment, to undergo R.I. For two years. One half of the fine, if realized, was directed to be paid to the injured P.Ws. As compensation.
5. The appellants preferred Criminal Appeals Nos.25 and 63 of 1994 before the Lahore High Court, Lahore against their conviction and sentence. They also moved the High Court with an application for compromise stating therein that the legal heirs of all the deceased except Mst. Maryam Bibi and Mst. Nasim Akhter (injured P.Ws.7 and 8) had waived their right of Qisas and had compounded the offence. They prayed for decision of their appeals in the light of the compromise between the parties. A learned Division Bench of the High Court, by the consolidated judgment dated 28-2-2001 disposed of their appeals and answered murder references as under:-- "Muhammad Aslam and Sughiran died in subsequent incident who had survived Altaf Hussain and Manzoor Hussain, deceased as father and mother apart from their real sister Mst. Maryam and Naseem Bibi. None of them compromised with the accused. Therefore, Muhammad Sharif, being brother of Muhammad Aslam could not compound the murder of Altaf Hussain and Manzoor Hussain.
'Muhammad Aslam was survived by his two daughters namely Nasim Bibi and Maryam Bibi and Muhammad Sharif his brother. Out of them only Muhammad Sharif has granted pardon. Likewise, Mst. Sughiran was survived by her mother Allah Rakhi and two daughters Nasim Bibi and Maryam Bibi but only mother has granted pardon to the convicts.
'The result of above discussion is that on two counts regarding murder of Manzoor Hussain and Altaf Hussain, the conviction and sentence is maintained. The appeal to that extent of all the convicts/appellant is dismissed. However, as far as case of Rehmat Khan, Muhammad Aslam and Mst. Sughiran deceased is concerned, although we have accepted the compromise partly but as appellants/convicts have committed murder of innocent persons, in such a brutal manner and destroyed the family over a petty dispute of small piece of agricultural land, the case falls within the ambit of the concept of "ARABIC TEXT". Their conviction is, therefore, altered from section 302, P.P.C. To section 311, P.P.C. And they are sentenced to 14 years' R.I. Each as Tazie on three counts. The sentence of all convicts under sections 324/148, P.P.C. For causing grievous injuries to Mst. Maryam Bibi and Naseem Bibi is maintained. All the sentences shall run concurrently with benefit of section 382-B, Cr. P. C.
' Murder Reference No,17 of 1994 is answered in affirmative. Murder Reference No,18 of 1994 is answered in negative." Hence this appeal by leave of this Court.
6. Raja Muhammad Anwar, Senior Advocate Supreme Court learned counsel for the appellants submitted that the appellants had also moved Criminal Miscellaneous Application No,387 of 2003 before this Court to the effect that except Mst. Maryam Bibi, P.W.7 and Mst. Nasim Akhtar, P.W.8, all other Walis/heirs of the deceased persons had waived their right of Qisas and had compounded the offence of murder. Muhammad Sharif, the real brother of deceased Muhammad Aslam had also pardoned them. As regards the murder of the deceased Manzoor Hussain and Altaf Hussain sons of Muhammad Aslam, their maternal-grandmother Allah Rakhi, their maternal-aunts Jamila Bibi and Sharifan Bibi, their real paternal-uncle Muhammad Sharif had also pardoned and waived their right of Qisas. It was next contended that death penalty had been awarded, by way of Qisas, under section 302(1), P.P.C. And most of Walis/heirs of the deceased had waived their right of Qisas and had compounded the offence. Therefore, the appellants could not be sentenced to death in view of section 311, P.P.C.
7. On the other hand, Mr. Muhammad Hand Khatana, learned Acting Advocate-General, Punjab, assisted by Mrs. Afshan Ghazanfar, Assistant Advocate-General and Malik Ainul Haq, learned State Counsel and Mrs. Nahida Mehboob Ellahi, learned Deputy Attorney-General for Pakistan, contended that the death sentence of the appellants was to be treated as having been awarded by way of Tazir under section 302(b), P.P.C. And not by way of Qisas. It was further argued that the appellants were guilty of gruesome and brutal murder of five persons in a manner which would amount to Fisad-fil-Arz and that it was not a fit case for taking a lenient view or for the grant of permission for a compromise between the parties.
8. We have heard the learned counsel as well as the learned Law Officers at length and have also gone through the record. The provision of section 302, P.P.C. Lays down that, subject to the provisions of Chapter XVI, whoever commits Qatl-i-Amd shall be punished with death as Qisas or death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable. Section 304(1)(b), P.P.C. Reads, inter alia, that proof of Qatl-i-Amd liable to Qisas shall be by the evidence as provided in Article 17 of the Qanun-e- Shahadat Order, 1984 (P.O. No,10 of 1984). The provisions of subsection (1), mutatis mutandis, apply to a hurt liable to Qisas. By virtue of Article 17(1) of the Qanun-e-Shahadat stipulates that:-- "The competence of a person to testify, and the number of witnesses required in any case are required to be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
9. We find that in the present case the test and standard of proof for awarding the death sentence by way of Qisas were not satisfied as required by the Injunctions of Islam. The process of Tazkia- alShahood was not at all undertaken by the trial Court at any stage as enunciated by this Court in the case Ghulam Ali v. The State PLD 1986 SC 741. Moreover, the punishment of Qisas was not awarded by the trial Court in respect of injuries on the person of Mst. Maryam Bibi P.W.7 and Mst.
Nasim Akhtar, P.W.B. Therefore, the death penalty awarded by the trial Court to the appellants and confirmed by the High Court, has to be treated as falling under section 302(b), P.P.C. By way of Tazir.
10. Section 309, P.P.C. Deals with waiver/Afw of Qisas in Qatl-iAmd. Under the said provision where there are more than one Wali of a victim, anyone of them may waive the right of Qisas and the Wali who does not waive the right of Qisas is entitled to the share of Diyat. It further lays down that in the case of more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas of the other victims However, section 311, P.P.C. Makes it clear that notwithstanding anything contained in section 309, or 310, P.P.C., where all the Walis do not waive or compound the right of Qisas or if the principle of Fasad-fil-Arz is attracted, the Court may, having regard to the facts and circumstances of the case, punish the offender against whom the right of Qisas has been waived or compounded, with death or imprisonment for life or imprisonment of either description for a term which may extend to 14 years as Tazir. Admittedly, in the present case Mst. Maryam Bibi P.W.7 and Mst. Nasim Akhtar P.W.8, who are also the injured daughters of deceased Muhammad Aslam and Mst. Sughiran Bibi sisters of the other deceased Manzoor Hussain and Altaf Hussain have not waived their right of Qisas nor have compounded the offence.
By virtue of section 345, Cr.P.C. All the heirs of the victim may compound the offence of Qatal-i- Amd falling under section 302, P.P.C. Only with the permission of the Court. Under section 338-E of the P.P.C., all offences in Chapter XVI including the offence under section 302, P.P.C. Can be waived or compounded and the provisions of sections 309 and 310, P.P.C. Have, mutatis mutandis, been made applicable. Nevertheless the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offence which shall, however, be subject to the provisions of section 345, Cr.P.C. As well as Chapter XVI of the P.P.C.
11. In a recent case of Bashir Ahmed v. The State 2004 SCMR 230, the death sentence of a convict under section 302(b), P.P.C. As Tazir was maintained and benefit of the provisions of 309 and 310, P.P.C. Was declined notwithstanding the fact that one of the Walis of the deceased had compounded the offence. It was further held that such an offence could be compounded by all the legal heirs of the deceased only with the permission of the Court in view of section 345(2), Cr.P.C. A somewhat similar view was taken in the cases of Muhammad Saleem v. The State PLD 2002 SC 558, Muhammad Arshad v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547 and Sh.
Muhammad Aslam and another v. Shaukat Ali alias Shuka and others 1997 SCM R 1307. No other point was urged by the learned counsel for the appellants. In our opinion, the impugned judgment of the High Court does not call for any interference by this Court.
12. There is no doubt in our mind that the prosecution had proved its case against the appellants to the hilt. The ocular account of the occurrence as given by Abdul Majeed P.W.6 was supported by the injured eye-witnesses Mst. Maryam Bibi P.W.7 and Naseem Akhter, P.W.8. The medical evidence also corroborates the ocular version of the prosecution. The recoveries of blood-stained weapons of offence were also made from the appellants. The post-mortem reports of deceased persons clearly show that they were slaughtered in a brutal and gruesome manner which constituted Fisad-fil-Arz. Therefore, the High Court was justified in answering the Murder Reference No,17 of 1994 in affirmative. We may also observe that the application of the appellants for compromise might have been dealt with differently if all the heirs/Walis of all the deceased had waived their right of Qisas by compounding the offence.
13. For the foregoing reasons, we do not find any merit in this appeal and Criminal Miscellaneous Application No,387 of 2003 which are dismissed. However, the death sentence of the appellants is confirmed by way of Tazir.