JUDGMENT KHAWAJA MUHAMMAD SHARIF, C.J.---This judgment will dispose of Criminal Appeal No.739 of 2010, filed by Muhammad Shahid Aslam, convict/ appellant, who was convicted and sentenced. By the learned Additional. Sessions Judge, Wazirabad, District Gujranwala, vide judgment dated 17-3-2010.
Death along with compensation of Rs.2,00,000 payable to legal heirs of the deceased, in default whereof to further undergo S.I. For 6 months under section 302(b), P.P.C.
Murder Reference No.219 of 2010 for confirmation or otherwise of death sentence of the appellant Muhammad Shahid Aslam shall also be replied through this single judgment.
2. During pendency of the appeal, an application bearing Criminal Miscellaneous No.2136-M of 2010, under section 345 Cr.P.C. Seeking permission to compound the offence was filed. The said application along with allied documents was sent to the learned Sessions Judge, Gujranwala, for submission of the report with regard to genuineness of the compromise.
3. Report has been received according to which the compromise entered between the parties is genuine.
4. The learned Deputy Prosecutor-General, for the State after going through the report submits that he is satisfied with genuineness of the compromise and has no objection if the appellant is acquitted of the charge.
5. Mr. Abdul Khaliq Safrani, Advocate appearing for the complainant submits that the occurrence in this case had taken place on 27-9-2008, when the deceased Mst. Mussarat Tahira was murdered.
At that time, her father was alive, but he died on 26-1-2009. He submits that father of the deceased has left one son Muhammad Afzal and three daughters Mst. Sugran Bibi, Mst. Kausar Parveen and Mst. Zahida Parveen. According to him, they are also entitled to 1/6th share of Diyat amount. He has relied upon the judgment reported as Ahmad Nawaz alias Gogi v. The State (PLD 2007 Lahore 121) and an unreported judgment passed by this Court in Criminal Appeal No.1982 of 2002 vide order dated 13-1-2005.
6. We have heard learned counsel for the parties as also the learned Deputy Prosecutor-General.
7. The facts and circumstances of the unreported judgment relied upon by the learned counsel for the complainant are distinguishable, whereas, the judgment reported as Ahmad Nawaz alias Gogi v. The State (PLD 2007 Lahore 121) does not support the case of the petitioner, but, lays down the law that the heirs of an heir' of the decease cannot be included in the definition of a Wali. In this reported judgment, one Mohsin Raza, who was unmarried was murdered and he was survived by his mother Mst. Bushra Bibi and Maqbool Ahmad father, but, Maqbool Ahmad father died after the murder of Mohsin Raza and his inheritance devolved upon his sons and daughters from his. Other two wives. In Paragraph No.7 at page-127, a learned Division Bench of this Court, which included myself (Kh. Muhammad Sharif, J., at that time), the following observation was made:-- "In the present case, the consanguine sisters were to inherit from the father of the victim namely Maqbool Ahmed and trot from Mohsin Raza victim himself and thus they were the It hirs of Maqbool Ahmad izat of 'he victim namely Mohsin Raza. It is not disputed that the said consanguine sisters had not, and could not inherit the property of Mohsin Raza as they were not his heirs at the time of his murder. What the consanguine sisters are claiming before us is a right to effect or refuse a compromise with the appellant which right they claim to have inherited from Mohsin Raza's father namely Maqbool Ahmad and they are not claiming any right to inherit the property of Mohsin Raza directly. According to the spirit and rationale of the provisions of section 305(a), P.P.C, a wali of the victim is the person who is entitled to inherit the property of the victim and the interpretation of the said provisions cannot be stretched to include in the definition of wali a person who claims to have inherited the right of compromise possessed by the Wali. No legal provision has been produced nor any reference to the Islamic jurisprudence has been made before us to support such a stretched interpretation of the provisions of section 305(a), P.P. C. Apart from that the spirit of the Qisas and Diyat laws is to quench the thirst of revenge of the immediate heirs of the victim and thus the right to enter into a compromise or otherwise cannot be extended to any other remote relative of the deceased who may not inherit the property from the deceased at the time of his murder but may at some subsequent stage become entitled to inherit some property from some heir of the deceased upon the death of such heir."
In view of the law laid down in the reported judgment, we do not find any difficulty in deciding the instant case as well and we hold that the heirs of the father of the deceased Musarrat Tahira i.e. His one son Muhammad Afzal and three daughters Mst. Sugran Bibi, Mst. Kausar Parveen and Mst.
Zahida Parveen cannot be included in the definition of "Wali" and only the husband of the deceased and her minor children are entitled to the Diyat amount and only they can enter into a compromise of the matter in question.
8. As per the report submitted by the learned Sessions Judge, the deceased in this case, Mst.
Musarrat Tahira, was survived by Sharjeel Shahid, Muhammad Talha Shahid minor sons, Miss Mahnoor Shahid and Mamona Shahid minor daughters and the convict/appellant Muhammad Aslam Shahid. One Muhammad Aslam appeared in the court and stated that he was appointed as a guardian of person and property of the minors by the court of Mr. Abid Ali, learned Guardian Judge, Daska on 27-5-2010. He is competent to make statement on behalf of his minor guardian children. His statement has been recorded wherein he on his behalf and on behalf of his grand children has waived the right of Qisas against the convict in the name of. Allah Almighty. He has further deposed that he has no objection on the acquittal of the convict from the case. The convict appellant has produced a Jamabandi according to which landed property measuring 18 marlas situated in Sambrial, District Sialkot has been transferred in the name of minor sons and minor daughters.
The compromise has been arrived at between the parties without any duress and coercion: It, even otherwise advances public policy by shortening litigation and promotes harmony and peace amongst the warring parties. The learned Sessions Judge has also showed his satisfaction with regard to genuineness of the compromise. The learned Deputy Prosecutor-General is too satisfied that the compromise arrived at between the parties is genuine. We have therefore, no hesitation in granting permission to compound the offence.
Resultantly, Criminal Miscellaneous No.2136-M of 2010 is allowed and Criminal Appeal No.739 of 2010 is accepted with the result that the conviction and sentence recorded against the appellant Muhammad Shahid Aslam by the learned trial Court vide impugned judgment is set aside and he is acquitted of the charge.
The appellant is in jail, he shall be released forthwith, if not required in any other case.
The Death Sentence of the appellant, Muhammad Shahid Aslam is NOT confirmed and Murder Reference No.219 of 2010 is answered in the NEGATIVE..