Tariq Pervez Khan, C.J.--This is an appeal from jail filed by condemned prisoner Muhammad Zaman against his conviction and sentence awarded to him on 31.1.2005 by Additional Sessions Judge-III at Mardan.
Through impugned judgment appellant stands awarded death sentence on four counts under Section 302(b) PPC and to pay Rs, One lac as compensation on each count to legal heirs of each deceased.
There are four deceased in this case namely, Mst .Lal Madan who was wife of appellant and their three daughters Mst. Musarrat aged 18/19 years. Mst. Nargas aged 16/17 years and Mst. Jarnila aged 12/13 years.
2. Crime was committed on 1.9.2000 at 9.45 p.m. reported by Haider Zaman (PW.12) a son of the appellant. He has charged Muhammad Zaman his father for the murder of four deceased named above. Subsequently when appellant was arrested he confessed his guilt on 2.9.2000 where he has taken the plea that his wife and daughter despite he forbad them would leave the house without taking his permission.
3. Pending this appeal all the legal heirs of the four deceased entered into compromise and they have waived offer their right of qisas and diyat.
4. On 16.1.2006 a Division Bench of this Court recorded statements of Haider Zaman and Shah Zaman sons of the appellant as well as of deceased Mst. Lal Marjan and brothers of the three other female deceased. Statement of Mst. Farhat sister of Haider Zaman was also recorded. One of the legal heirs namely, Gohar Zaman brother of Haider Zaman was serving abroad, therefore, his duly attested affidavit by Embassy of Pakistan:at Doha was filed where he has also admitted the existence and factum of compromise.
5. Joint statement of elders of the locality was also recorded i,e, Sajid and Khair-un-Nabi who have also confirmed the existence of compromise.
6. On the last date case was adjourned because learned counsel for the State seriously objected to the accepted of compromise and wanted to argue the case on merits.
7. Today, Bashir Ahmad and Hussain Muhammad appeared before this Court with an application requesting for adjournment of the case as they wanted to engage a counsel. They claim to be the brothers of Mst. Lal Marjan deceased and they state that they are not party to any compromise as for murder of their sister and also of their nieces is concerned.
8. Under the law where Mst. Lal Marjan was married to Muhammad Zaman and she has male issues out of the wedlock, her brothers would not be her Walies nor legal heirs but only her parents.
When asked, we are informed that parents of Mst. Lal Marjan (deceased) pre-deceased, therefore, Bashir Ahmad and Hussain Muhammad has got no legal right of audience. Their request is turned down.
9. Although all the surviving legal heirs of the four deceased have waived their right of qisas and diyat and their compromise appears to be genuine because of inter se close relationship but we are not inclined to give full effect to the compromise because under Section 338-E PPC notwithstanding waiver or compounding of the offence, the Court may in its discretion having regard to the facts and circumstances of the case, can award Ta'zir to the offender according to the nature of the offence.
10. At this juncture, learned counsel for the appellant has cited case of Nazar Ali and another vs. State reported in PLD 1992 Peshawar 176 wherein a Hon'ble Judge of this Court held that Section 311 PPC provides for punishment as Ta'zir after waiver or compounding of right of qisas in Qatl-i-Amd under Sections 309 and 310 PPC respectively and it has no application to the cases of Qatl-i-Amd liable to Ta'zir and that composition of said offence under Section 345 Cr.P.C. shall have the effect of acquittal.
11. With all respects and humility to the rule as laid down by Hon'ble Judge of this Court in case (Supra), we find that Section 311 PPC requires further deliberation and interpretation.
12.For convenience Section 311 PPC is reproduced and is as under:-- "311. Ta'zir after waiver or compounding of right of qisas in qatl-i-amd.--Notwithstanding anything contained in Section 309 or Section 310 where all the wali do not waived or compounded the right of qisas or keeping in view the principle of fasad-fil-arz the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with imprisonment of either description for a term which extended to fourteen years as ta'zir'.
Where this section starts with that notwithstanding anything contained in Section 309 or Section 310 PPC where all the wali do not waive or compound the right of qisas (Section 309 PPC deals with Waiver Afw of qisas in qatl-i-amd and Section 310 PPC deals with compounding of qisas (Sulh) in qatl-i-amd).
13. Under the preceding section an adult sane wali may at any time and without any compensation can waive his right of qisas, so on and so forth. Under the later section on adult sane wali at any time but on acceptance of bald-i-sulh can compound his right of qisas. Seen in this perspective, wound mean that where anyone of the wali who is entitled to waive or compound the right of qisas does not so waive or compound, the Court may in its discretion punish an offender against whom right of qisas has been waived or compound with imprisonment of either description for a term which may extend to fourteen years as Ta'zir.
14. In our view Section 311 PPC would apply, in two different cases, one as explained above but the second would be where keeping in view the principle of fasad-fil-arz, the Court may in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of qisas has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as ta'zir.
15. Section 311 PPC is followed by an expiation i,e, the expression l'asad-fil-arz' shall include the past conduct other offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed.
In our view the word "or" appearing in between waive or compound the right of qisas or keeping in view the principle of lasad-fil-arz' would made the provision disjunctive, first would be where one of the wali have not waived or compound the right of qisas, Court is empowered to punish the offender to imprisonment for a term which may extend to fourteen years and the second would be where in view of principle of `fasad-fil-arz' the Court in its discretion having regard to the facts and circumstances of the case read with explanation to Section 311 PPC shall have the power to sentence the offender to imprisonment for a term which may extend to fourteen years as Ta'zir.
16. The above interpretation of law as made by us would rather be more in consonance with Islamic Principles of Criminal Jurisprudence and Justice because waiver and compounding if not made by all the wali cannot be given the effect of outright acquittal.
17. The insertion of expression `fasad-fil-arz' is the requirement of socio-cultural setup and to maintain law and order and to save the civic society from deterioration.
18. Where a person for no sufficient reason resorted to indiscriminate-firing, taking lives of four innocent ladies which include his wife and three young daughters, should not go scot, free just because the legal heirs of the four deceased have waived and compounded the offence against the offender.
19. In the instant case legal heirs of the deceased who have waived and compounded are none else but three sons and a surviving daughter.
20. Mst. Lal Marjan wife of appellant is survived by no other legal heirs except three sons and a daughter who appeared in Court and got recorded their statements because her parents pre- deceased her death.
21. In our culture it is very convenient as has happened in this case that where father of the four surviving legal heirs is awarded death sentence on four counts, such legal heirs would have no option but to yield to the pressure/duress, influence and social constraint but to forgive their father.
22. This Court would take strong exception to such compounding and waiver where a person has acted in a brutal manner by taking lives of four innocent human beings be if they are his wife or his daughters.
23. It is a case in which the expression fasad-fil-arz is fully applicable because killing of innocent persons which include a man or woman but for no reason and that too in brutal manner has not only ruined the family but has very insecure impact on the public at large.
24. Will it not be a case of extreme insecurity to the wife and children born out the wedlock of the spouse if such parents like in the instant case father is allowed to go home?
25. We, for the reasons stated above and with all respects to the case (Supra) not agreeing with Hon'ble Single Judge of this Court, are of the view that appellant through stands acquitted of the murder charge of the four ladies because all the legal heirs have compounded the offence and have waived their right of qisas and diyat but we till feel no hesitance by exercising our powers under Section 338-E PPC, not to award the offender punishment of imprisonment.
26. Keeping in view the nature of offence committed, the manner it was committed and the person by whom and against whom it is committed, it is a fit case where. expression of `fasad-fil-arz' is applicable. We, therefore, convict the appellant under Section 311 PPC to ten years R.I. on four counts as Ta'zir. Needless to say that all the sentences awarded shall run concurrently.
We, restrain to extend him the benefit of Section 382-B Cr.P.C. because where case of an offender falls under the expression 'fasad-fil-arz' he shall not be entitled to any grace and leniency in awarding sentence muchless to award the benefit of Section 382-B Cr.P.C. The Murder Reference in answered in negative.