The petitioner, Mst. Zaib-un-Nisa, by way of the instant criminal revision petition filed under Section 439 Cr.P.C., has challenged the order dated 15/3/2008 passed by the learned Sessions Judge Lakki, whereby Mst. Safina Bibi, widow of the deceased Fahimullah and detained in Central Jail Bannu vide case FIR No, 119 dated 20/10/2007 of Police Station Dadiwala registered under Sections 302/120-B/148/149 PPC has been summoned for compromise proceedings in case FIR No,41 dated 29/4/2007 under Sections 302/324/148/149 PPC of Police Station Dadiwala, Tehsil and District Lakki Marwat.
2. Briefly narrated the facts of the case as gleaned from the FIR lodged by Mst. Gul Afsara are that on the fateful day, the complainant alongwith her father-in-law Muhammad Khan and Qamar-un- Nisa, daughter of Muhammad were on their way for cutting wheat crop and when reached near the house of Abdul Hai Landiwa at about 0630 hours, Abdur Rahim alias Adraim, Naikum Khan, Naqib Khan and Naimat Khan, their co-villagers, duly armed with Kalashnikovs, emerged on the scene and started firing at them with which she and Muhammad Khan were hit and fell down to the ground from the donkey cart while Qamar-un-Nisa luckily escaped unhurt. After a while, Muhammad Khan succumbed to the injuries and died, whereafter the accused decamped from the spot. Motive for the occurrence was given to be previous blood feud. The accused were thus charged for killing Muhammad Khan, injuring the complainant and ineffectively firing at Qamar- un-Nisa vide FIR ibid.
3. Subsequently, Fahimullah son of Muhammad Khan, was murdered and FIR No, 119 dated 20/10/2007 under Sections 302/34/120-B/13-A0/148/149 PPC was lodged by Mst. Zaib-un-Nisa in Police Station Dadiwala, District Lakki Marwat, in which unknown persons were charged for the commission of the offence.
4. Afterwards, during interrogation of the case; Mst. Safina Bibi, (widow of the deceased Fahimullah), Faiz Muhammad (brother of the deceased), Mst. Gul Afsara, (wife of said Faiz Muhammad) and Mst. Qamrunnisa, sister of the deceased were found involved in the occurrence who in their statements under Section 164 Cr.P.C. confessed to have committed the crime.
Meanwhile, the complainant/petitioner in FIR No, 41 affected compromise with the said accused and for finalization of the compromise proceedings, shares of the legal heirs of the deceased are to be determined according to their entitlement. So the learned Court summoned Mst. Safina Bibi from jail including the other legal heirs.
5. Learned counsel for the petitioner argued that as Mst. Safina Bibi alongwith Respondents No, 2 and 3 are involved in the murder of Fahimullah and thus whatever share in the Diyat amount of the deceased Muhammad Khan devolves on Fahimullah (then alive), the respondents are not entitled to inherit under the Muhammandan Law, nor they can participate in compromise proceedings in case FIR No, 41 regarding the murder of Muhammad Khan deceased.
6. I have anxiously considered the arguments advanced at the bar in the light of available record.
7. There is no cavil with the proposition that any person committing patricide or matricide or any homicide of his predecessor-in-interest dis-entitles him to the inheritance under Muhammadan Law. But the proposition is subject to the condition that when charge of homicide is proved and he is convicted of the murder of the pre-positus and the conviction is finally maintained by the Courts of law. Till then, no heir can be deprived of the inheritance, merely because he is only charged for the offence.
8. Be that as it may, the respondent Mst. Safina Bibi, might be involved in the killing of her own husband together with the co-accused, but she could only be deprived of his legacy when it is finally determined that she is the real culprit. In the present scenario when the complainant has compromised the case with the accused party, the respondent Mst. Safina Bibi could not be held disentitled to the inheritance of her husband which he will inherit in the Diyat amount of Muhammad Khan deceased. Therefore, her summoning from Jail to participate in the compromise proceedings through the impugned order could not be termed to be illegal. This view is also supported by the last line of the `Shari Fitwa' annexure-H with this petition, according to which only that legal heir of the deceased is deprived of the legacy of the prepositus who is proved to have committed the offence. So on this ground only, Respondents No, 1 to 3 cannot be deprived of the inheritance/legacy.
9. The impugned order of the learned Court below is strictly in consonance with law and established principles of justice which calls for no interference.
10.Consequently, I find no substance in this petition which is hereby dismissed in limine alongwith Cr. Misc. No, 46 of 2008.