' TARIQ PARVEZ KHAN, C.J.--- Musa Khan appellant is charged for causing death of Mst. Khankhela.
Report is made by Mst. Riyasat P.W.3 daughter of deceased Mst. Khankhela. She has named in the report her brother Haroon Khan to be an eye-witness who has appeared as P.W.4 but the shocking and tragic aspect of the case is that Mst. Khankhela is real mother of Musa Khan appellant, thus, P.W. Riyasat is his sister and P.W. Haroon Khan is his brother. According to the report made on 27-4- 2001 at 8-5 p.m., recorded by Shah Sawar S.-I. By complainant Mst. Riyasat, her deceased mother Mst. Khankhela and P.W. Haroon Khan were all present in their house when Musa Khan duly armed with pistol came and fired at his mother who was hit and died.
' Motive for the crime is some land dispute between mother and the son.
2. It is worth mentioning here that pending this appeal and even during trial, all other legal heirs of the deceased Mst. Khankhela have entered into compromise with the appellant obviously because of their close relationship. However, one of the legal heirs, namely Ilyas son of the deceased Mst.
Khankhela who is present in Court today and so was on the last date, is not in agreement with the rest of the legal heirs and does not want to compound the offence.
3. Although two eye-witnesses i.e. Mst. Riyasat and Haroon Khan were both declared hostile at the trial yet the trial Court believed their evidence and has authored judgment, dated 26-6-2006 wherein appellant has been awarded sentence of death under section 302(b), P.P.C. As Tazir.
4. Today it is argued on behalf of the appellant that when the two eye-witnesses have resiled from their statements and have been declared hostile and when all the legal heirs of the deceased except one have compounded the offence, appellant is entitled to acquittal.
5. We have considered the submissions made by the counsel for the parties and have gone through the evidence and have even heard Ilyas son of the deceased Mst. Khankhela, who is present in Court.
6. No doubt that Mst. Riyasat and Haroon Khan were declared hostile and were subjected to cross- examination by the prosecution but both these witnesses have admitted the fact that F.I.R. Bears their thumb-impressions and has been correctly recorded and it was thumb-impressed after it was found correct when read over to them. These two witnesses have appeared in the witness-box in the absence of the appellant when he was declared proclaimed offender and also in their statements under section 512, Cr.P.C., they charged the appellant. They have been confronted by the prosecution with their such previous statements and they have admitted their statements to be correct. Despite the fact that they were declared hostile, there is evidence with the prosecution which can be legally relied upon for recording conviction.
7. It is a case in which we have to reconsider the quantum of sentence. No doubt that in a very cruel manner and for land dispute, the appellant has killed his real mother. She has sustained six fire-arm entry wounds but because all the legal heirs of the deceased namely Mst. Riyasat, Mst.
Musarrat, Haroon Khan and Muhammad Younus have compounded the offence and have compromised with the appellant, except Muhammad Ilyas.
8. Since conviction has been recorded under section 302(b), P.P.C. As Tazir and since all the legal heirs have not compounded the offence but because there was no evidence of Qisas as required under section 304, P.P.C., the appellant cannot be extended the benefit under section 308 or 311, P.P.C.
9. However, we have to reproduce section 302(c)., P.P.C. As amended, as under:- ".302. Punishment of Qatl-i-Amad.--- Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be--
(a) ......................................................
(b) ......................................................
(c) punished with 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."
10. From the reading of the above subsection it appears that where an accused person has been convicted and sentenced but in a case where punishment of Qisas cannot be enforced.
11. This subsection is to be seen and applied independently and not in conjunction with sections 306/307 read with sections 308 and 311, P.P.C. The reading of sections 306 and 307, P.P.C. Indicates that they cater in a situation where Qatl-i-Amd is not liable to Qisas and cases in which Qisas and.
Qatl-i-Amd shall not be enforced. These sections cover also a case where even one Wali of the deceased has voluntarily and without duress either has waived of his right of Qisas or has compounded the offence, it will not be a case where Qisas will not be enforced but that will be a case where offender stands awarded sentence as Qisas.
12. Our view is that section 302(c), P.P.C. Is to cover other eventualities like the present one where appellant is charged for killing his mother and all legal heirs except one have compounded the charge.
13. Under section 302(c), P.P.C. It is provided that offence of Qatli-Amd is punishable with imprisonment of either description for a term which may extend to twenty-five years where according to the Injunctions of Islam punishment of Qisas is not applicable. The liability of Qisas will occur only if conviction and sentence is recorded by the trial Court as such but where facts and circumstances of the case and where there is no evidence of Qisas, the Court comes to the conclusion that even if there was evidence of Qisas, accused could not have been punished to Qisas, would be a case which empowers the Court to resort to section 302(c), P.P.C.
14. We, therefore, partially allow this appeal. The conviction of the appellant is maintained but instead of section 302(b), P.P.C., the appellant is convicted and sentenced under section 302(c), P.P.C. And in the circumstances of the case, he is awarded 15 years' R.I. Because he is charged for killing his mother and the fact that all legal heirs of the deceased have compounded the offence except one Ilyas, therefore, convict is directed to pay compensation amount under section 544-A, Cr.P.C. But to one of the legal heirs i.e. Ilyas to whom the amount payable would be Rs,20,000, which shall be recoverable as arrear of land revenue, also extending him the benefit of section 382-B, Cr.
P.C .
15. Because we have partially accepted the appeal, the Murder Reference is answered in negative.