' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---The Additional Sessions Judge, Dera Allah Yar (the "trial Court"), vide judgment dated 17.05.2007 (the "impugned judgment") has convicted the appellant Fateh Din alias Fatoo son of Naseer Khan under Section 302(b) of the Pakistan Penal Code 1860 (P.P.C.) and sentenced him to death as ta'zir. The appellant preferred Criminal Appeal No,(S)157 of 2011 for his acquittal, while the learned trial Court has sent Murder Reference No,(S) 14 of 2011 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Briefly stated facts of the case are that on 06.07.2006, a case vide FIR No,07 of 2006, under Section 302 of the Pakistan Penal Code, 1860 ("P.P.C.") Ex.P/1-A) was registered at Police Station RD- 298 of District Jaffarabad, by the complainant Essa Khan (PW-1). It was alleged by the complainant that he is Bazgar of Nabi Bakhsh and resides at Goth Dhani Parta along with his family members.
They have buffalos and sell their milk etc. To Hotel Sardar Hussain Tanwari at Hair Din. On the fateful day, as usual his brother was carrying milk to Hair Din on his buffalo cart, the complainant and his cousin Ali Dost at some distance, were going to Hair Din on foot in regard with their personal affair.
When they reached near Muhammad Moosa cemetery, all of a sudden the appellant appeared from behind the trees having a shotgun in his hand and challenged his brother that he would not be spared today. As soon as the complainant's brother disembarked from the cart, the appellant opened fire upon him. When the complainant and his cousin rushed to rescue the deceased Moosa, the appellant threatened them that if they come forward they will also meet the same fate .
Thereafter, the appellant by waiving, the shotgun escaped from the scene. The complainant and his cousin could not do anything being empty handed. Motive behind the occurrence was alleged to be a family dispute. Consequently, the aforesaid FIR was registered.
3. After registration of the FIR (Ex.P/1-A), investigation of the case was entrusted to PW-7 Abdul Shakoor, Sub-Inspector (SI), who, along with other police employees as well as the complainant, went to the place of occurrence, found the dead body of deceased Muhammad Moosa, prepared inquest report (Ex.P/7-K), inspected the site on the pointation of the complainant, prepared site inspection memo (Ex.P/2-b), prepared the site sketch (Ex.P/7-J), produced the Forensic Science Laboratory report of blood-stained earth (Ex.P/7-N) and firearms expert report of the shotgun and empty shell (Ex.P/7-P), took into possession the blood-stained earth vide (Ex.P/2-C), took into possession the empty shell of 12 bore vide memo (Ex.P/2-D), prepared the disclosure memo of the appellant (Ex.P/3-E), prepared sealed parcel of the pellets and blood stained clothes (Ex.P/4-F), took into possession the shotgun No,268618 vide memo (Ex. P/5-G) and prepared incomplete challans (Ex.P/7-L and Ex.P/7-M) and supplementary challan (Ex. P/7-Q).
4. On the stated allegation, charge was framed and read over to the appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced seven witnesses. PW-1 Essa Khan is complainant of the case, who exhibited FIR as (Ex.P/1- A). PW-2 Ali Dost, is an eyewitness, who was accompanying the complainant, when the incident took place. PW-3 Head Constable Mehrab, is witness to the disclosure memo of the appellant (Ex.P/3-E). PW-4 Mehboob Ali Constable is witness to the recovery memo of blood stained clothes and two pellets (Ex.P/4-F). PW-5 Head Constable Haibat Khan is the witness of recovery of shotgun which was taken into possession vide recovery memo (Ex.P/5-G). PW-6 Dr. Mazhar Ali Khosa conducted the postmortem examination of the deceased and produced post-mortem examination report (Ex.P/6-H) and PW-7 Abdul Shakoor, SI, is the investigating officer of the case.
Then the prosecution closed its side.
5. In his examination under Section 342 of the Code of Criminal Procedure 1898 (C r . P.C.), the appellant denied and controverted each and every allegation of fact leveled against him by the prosecution and professed his innocence. However, he neither made any statement on oath under Section 340(2) of the Cr.P.C, nor produced, any witness in his defence.
6. This appeal along with Murder Reference were admitted to regular hearing, meanwhile on 23.06.2011 the appellant through his counsel submitted an application bearing C.M.A. No,Nil of 2011 under Section 345, Cr.P.C. To the effect that the major legal heirs of the deceased have entered into compromise with the appellant and have pardoned him in the name of Almighty Allah on which the report of the learned Additional Sessions Judge Dera Allah Yar was called for. Whereafter the learned trial judge sent the report with regard to the compromise, along with the statements of the legal heirs of the deceased confirming the contents of compromise. The report of the learned trial judge confirmed that the compromise has been arrived at between the parties for mutual harmony and without any coercion, duress, pressure, compulsion, deception or threat coupled with the fact that it is according to the settled principles of the law.
' The inquiry report in respect of compromise was received and was taken on record vide this court order dated 15.09.2011. In the instant case initially Mr. Shah Muhammad Jatoi, Advocate was representing the appellant and after the receipt of inquiry report, on 03.11.2011 Mr. Amj ad Hussain Khoso, Advocate entered appearance on behalf of the appellant and contended that the appellant is ready to deposit the share of Diyat amount of minor legal heirs of the deceased. He stated that the share of minor legal heirs has been calculated to the tune of Rs,600,000/- (six hundred thousand) and the appellant is ready to deposit the same by means of "Defence Saving Certificates" in favor of minor legal heirs namely Mst. Jameela, Mst. Bailla, Mst. Meeran Mai and Mst. Sumaira Mai and also sought directions to the Manager National Savings Center Dera Murad Jamali to do the needful. The order was passed accordingly but thereafter two consecutive adjournments were sought. On 10.01.2013 C.M.A. No,(s) 07 of 2012, which was already pending was pressed into service and permission was sought to mutate the land of one Bhagoi son of Alam in favor of the aforesaid minor legal heirs of the deceased but the request was turned down as the correct value of proposed property was not assessable.
7. Thereafter, matter remained pending and there was no appearance on behalf of the appellant.
On repeated notices of this court the appellant made a request for provision of a counsel on state expenses. Therefore, vide order dated 12.09.2013, Mr. Anwar-ul-Haq Chaudhry, Advocate was appointed as counsel for pauper appellant. After three consecutive hearing, on 30.01.2014 counsel for pauper appellant appeared before the court and requested for adjournment on the ground that some land has been transferred in the name of the appellant, verification and valuation whereof has been solicited from the Revenue Authorities for onward transfer in favor of the legal heirs of deceased in lieu of Diyat amount. Thereafter on each and every date of hearing adjournment was sought to do the needful. Till the last date of hearing learned counsel kept seeking adjournment for the above stated reason. However, subsequently the learned counsel apprised the court that the value of the said propert is not equivalent to the Diyat amount. Finally on 26.09.2014 the learned counsel informed that the pauper appellant is in jail and no one on his behalf has so far contacted him to address the issue, therefore, the case may be decided on basis of available record.
8. In view of the statement made by the learned for pauper appellant, we ourselves have gone through the record of the case, perusal whereof manifests that in the instant case the appellant has been awarded death sentence under Section 302(b), P.P.C. As Ta'zir. The question of moot importance is that what shall be the quantum of sentence, when the legal heirs of the deceased have entered into a compromise and pardoned the appellant in the name of Almighty Allah and no more want to proceed with the prosecution for murder charge of their predecessor-in-interest.
' The charge of Qatl-i-amd is punishable under Section 3020) (b) and (c) of P.P.C., whereas the penalty of death as Qisas is provided under section 302(a), P.P.C., which postulates that the penalty of death as Qisas shall be awarded, when the requirement of Section 304, P.P.C. Are available.
While, section 302(b), P.P.C. Provides the penalty of death or imprisonment for life as Ta'zir, having regard to the facts and circumstances of the case, shall be awarded if the proof in either of the forms specified in Section 304, P.P.C. Is not available.
9. The question of paramount importance would be that when a penalty of death cannot be enforced as Qisas, in case of subsection (b) of Section 307, P.P.C. 'when any Wali of the deceased voluntarily and without duress, to the satisfaction of the court, waives the right of Qisas under Section 309, P.P.C. Or compounds under Section 310, P.P.C.'.
The referred provision of Section 307, P.P.C. Clearly manifests that if anyone of the legal heirs entered into compromise the qisas for Qatl-i-amd would not be enforceable. The affect of this provision has been provided in subsection (2) of Section 309, P.P.C., which lays down that where a victim has more than one Walis, anyone of them could waive his right of qisas and the wali who did not so waive his right of qisas would be entitled to his/her share of Diyat. Although, the provisions of Section 308, P.P.C. Are not strictly attracted to the facts of the instant case, yet, subsection (2) of the said Section does provide a guideline in dealing with such like cases and it envisages that where an offender was not liable to qisas and was thus liable to payment of Diyat he could be punished with imprisonment by way of Ta'zir.
10. In the instant case, the legal heirs of the deceased have entered into compromise and have forgiven the appellant and sought permission of the court to compound the offence. That too, when the appellant was also ready to pay the share of minor legal heirs in lieu of Diyat amount and on account of his weak financial position was ready to transfer the immoveable property in their favor, but unfortunately the value of the property was not according to the volume of payable Diyat amount though the explanation provided under Section 310, P.P.C. Provides that compensation can be made according to Sharia in terms of cash or in kind or in the form of moveable or immoveable property. It may be clarified here that it needs no reiteration that all the referred provisions from Sections 304, 307, 309 and 310, P.P.C. Are in respect of cases of Qisas only, which is based upon the Quranic principle of Qisas.
11. Though in the instant case the appellant has been failed to make the payment of Diyat amount to minor legal heirs of the deceased, therefore, at the most it can be presumed that minors have not entered into compromise as yet but keeping in view the afore referred the Islamic principles of Qisas and Diyat law the appellant would not be liable to be hanged by the neck till death and the affect of the compromise can easily be considered as mitigating factor for awarding him the lesser punishment. Reference in this behalf is made to the case of Ghulam Hussain v. The State (NLR 1993 Criminal 203) and Mst. Khanum Jee v. The State (PLD 2005 Peshawar 62).
'In view of above discussion, we are of the considered opinion that compromise with legal heirs of the deceased in case of death as ta'zir can be considered as a mitigating factor for altering the conviction and awarding the lesser punishment of life imprisonment instead of death.
12. Thus, the sentence of death awarded under section 302(b), P.P.C. As Ta'zir is hereby altered and the appellant Fateh Din alias Fatoo son of Naseer Khan is convicted and sentenced under Section 302(b) of the P.P.C. To suffer life imprisonment with a fine of Rs,50,000/- (Rupees fifty. Thousand only) in lieu of compensation to the legal heirs as envisaged under Section 544-A, Cr.P.C. Or in default whereof to further undergo six (06) months SI. The benefit of Section 382-B of the Cr.P.C.
Shall also be extended in his favor.
' However, following the rule of prudence and principle of equity, we intentionally, leave the question of payment of Diyat amount to the minor legal heirs of the deceased for determination by the trial court and the appellant may approach the trial court as contemplated under Section 338-E, P.P.C., or may seek indulgence of the trial court for payment of Diyat amount to minor legal heirs through instalments as envisaged under Section 331, P.P.C., or in alternative gets permission to transfer any moveable or immoveable property in the name of minor legal heirs of the deceased, if at any subsequent stage he could arrange So.
' Office to send the papers of compromise deed and the inquiry report in respect of compromise along with original record of the case to the learned trial court. In case the convict/appellant moves any such application, same shall be decided strictly in accordance with law, as enumerated under sections 338-E and 331, P.P.C. And if the application is accepted, the convict/appellant shall be set at liberty, if not required in any other case, subject to furnishing surety equivalent to payable Diyat amount, if necessary.
' With the aforesaid modification in the conviction and sentence, the appeal is disposed of and the murder reference is answered in negative.