' AKHTAR ZAMAN MALGHANI, J.---This Revision Petition is directed against the order dated 17-5-2005 passed by Sessions Judge, Quetta, whereby; application of the petitioner for payment of 2/3rd amount of Diyat was dismissed.
2. Briefly stated, facts of the case are that Nasir Khan, son of the petitioner was tried under sections 302/337-ADF, P.P.C. For having committed murder of his minor daughter Iram Bibi aged about four years and causing injuries to his wife Mst. Saleema Bibi, who was found guilty under section 302(b), P.P.C. And section 337-A, P.P.C. By Sessions Judge, Quetta and sentenced to life imprisonment under section 302(b), P.P.C. And one year R.I. Under section 337-A, P.P.C. Plus Daman of Rs,1,00,000 to be paid to Mst. Saleema Bibi. The convict, Nasir Khan assailed the above mentioned judgment before this court in Criminal Appeal No:379 of 1999, which was disposed of vide judgment dated 2- 10-2002, whereby, conviction was allotted to section 308, P.P.C. And he was sentenced to twelve years' R.I. And was also directed to pay diyat amount to heirs of the deceased excluding the convict. The record reveals that on or about 14-3-2003 diyat amount of Rs,2,80,000 was deposited with the Court by brother of the convict namely Muhammad Naeem, whereafter, petitioner/father of the convict Nasir Khan filed an application before the Sessions Judge, Quetta for payment of diyat amount to the extent of 2/3rd share to him, as according to him he was entitled to the same.
The said application was transferred on the file of Additional Sessions Judge-III, Quetta who allowed the application on 31-12-2003, which order was assailed before this Court in Revision Petition No,26 of 2004. After hearing the parties the order passed by Additional Sessions Judge III, Quetta was set aside and matter was remanded to Sessions Judge, Quetta for deciding the same afresh. The learned Sessions Judge, Quetta vide order dated 17-5-2005 dismissed the application, hence this petition.
3. I have heard the learned counsel for the petitioner as well as learned Assistant Advocate General and counsel for the respondent. The learned counsel for the petitioner vehemently contended that along with application Fatwa of religious Scholars was filed, according to which petitioner was entitled to 2/3rd of the diyat amount but the learned Sessions Judge, Quetta failed to considered the said Fatwa. He further contended that under section 337-0, P.P.C. The petitioner was entitled to receive 2.3rd share of the diyat being grandfather of the victim and after exclusion of her father from inheritance, the petitioner had become entitled to the legacy of deceased.
4. On the other hand, the learned Assistant Advocate-General contended that the grandfather can get' share through his son which challen was broken, as such; he was not, entitled to diyat amount.
5. The learned counsel for Saleema Bibi vehemently contended that at the time of direction to the convict Nasir Khan to pay diyat amount to the legal heirs of the deceased, he was specifically excluded to receive any share from diyat amount which means diyat amount was to be paid to the other existing legal heirs and as mother of deceased remains the only legal heir in absence of Nasir Khan, she was entitled to receive whole amount of diyat. According to her petitioner was not entitled to receive any amount of diyat as he was not legal heir within the meaning of section 330, P.P.C.
6. I have carefully considered the respective contentions put forth by the parties' learned counsel and have also gone through the impugned order. Admittedly, deceased Iram Bibi was daughter of convict Nasir Khan who committed her murder and was convicted under section 308, P.P.C. To twelve years rigorous imprisonment as Tazir. He was also directed to pay diyat amount of the heirs of the deceased excluding the convict. As Nasir Khan otherwise being father of the deceased was legal heir was specifically excluded to receive any share from diyat amount the diyat amount was to be paid to other existing legal heirs excluding Nasir Khan. It is also not disputed that the petitioner was otherwise not entitled to the legacy of deceased Iram Bibi in ordinary course as father being alive would have excluded the grandfather from inheritance. There is consensus of opinion amongst the Islamic Scholars that murderer would be excluded from inheritance of the deceased, however, their opinion regarding entitlement of other persons to the estate of deceased, who claim succession through the murderer; is not unanimous but the Courts of subcontinent prior to partition and after independence have consistent view that the murderer or any person claiming through him would not be entitled to succeed to the estate of victim which view is based on the principle of justice, equity and good conscience. In the judgment reported in AIR 1924 (Privy Council) 209 it was held that a murderer must for the purpose of inheritance be treated as if he were dead when the inheritance opened and as not being a fresh stock of descent, the exclusion extends to the legal as well as beneficial estate, so that neither he can himself succeed nor can the succession be claimed through him. Similarly; in the judgment reported in AIR 1940 Lahore 172 it was observed that under the Muhammadan Law the rule of exclusion from succession applies to the murderer and his descendents and it was not necessary that murder should have been committed with the object of getting the deceased's property. After independence West Pakistan High Court in a case reported in PLD 1964 (W.P.) Lahore 451 held that under the principles of justice, equity and good conscience a murderer or his progeny cannot be allowed to benefit by his crime of murder because title of descendents claiming through murderer becomes tainted as the source of the channel through which the inheritance has to flow to them became blocked and extirpated by reason 'of the crime committed by that source. The dictum laid down in the above quoted judgments being based on principle of equity, good conscience and teaching of Islam was incorporated in the P.P.C. Vide section 317 P.P.C., whereby; a person committing Qatl-i-Amd or Qatl- e-Shibh-iAmd was debarred from succeeding to the estate of victim. The Hon'ble Apex Court in the judgment reported in PLD 1991 Supreme Court 724 observed as under:--- "Leave was granted by this Court as it was contended that there was a difference of opinion amongst the Muslim Jurists and Aima on the question whether the heirs of the murderer could also be excluded from inheritance and that this was a case of first impression so far as this Court was concerned.
' Today when the case has come up for hearing, the situation is altogether different. Even if there was some difference of opinion amongst the Muslim Jurists on this question but now this question is only of academic interest in Pakistan. The reasons being that Ordinance I of 1991 (commonly referred to as the Qisas and Diyat Ordinance), which is now in force in Pakistan, has settled this controversy, if there was any, by a specific provision."
As regards application of section 337-0, P.P.C. Suffice to observe that the said section applies only in the cases of hurt and not for Qatl-e-Amd. The petitioner having claimed inheritance through murderer Nasir Khan would not be entitled to the diyat amount because he could succeed to 2/3rd share in absence of his son. Whereas in the normal course he was not entitled to inherit anything from the deceased in presence of his son, as such; the learned Sessions Judge, Quetta rightly dismissed application of the petitioner.
' For the foregoing reasons, I find no merits in the instant petition, which is dismissed accordingly.