Mushatq Ahmad, Muhammad Afzal, Muhammad Yamin and Khuda Bakhsh were tried by a learned Additional Sessions Judge at Taunsa Sharif; they were indicted under sections 302, 394, 324, 109 read with 34, P.P.C.; all of them received guilty verdict, however, Mushtaq Ahmad was awarded death penalty under section 302, P.P.C. Besides conviction on other counts vide judgment dated 19.06.1997. The learned trial Judge omitted to specify as to under which clause of section 302, P.P.C., he was convicted and sentenced; his appeal met with no better fate when a learned Division Bench confirmed death penalty vide judgment dated 21.12.1999. A criminal petition for leave to appeal was dismissed on 30.10.2000 in the Hon'ble Supreme Court of Pakistan. The order of the Hon'ble Supreme Court of Pakistan is reproduced for ready reference:- "Learned counsel at the outset submitted that he would not press this petition on merits for acquittal, hut would confine his submissions only for substitution of death sentence into life imprisonment. The mitigating circumstance given by him was that it could not be ascertained from record as to what had happened in baithak of the complainant at the time of altercation between the complainant and the petitioner. The complainant has given a detailed statement in this respect that his father had died some days back and the petitioner when visited the compla;nant stated that he had come to condole the death of his father as he was the friend of the petitioner's father. The cross-examination of the petitioner indicates that it has not been discredited on any count, therefore, what ever he has stated in examination-in-chief stands intact. Even otherwise we have no reason to disbelieve the complainant as even remotely nothing could be shown which might have prompted the complainant for falsely implicating the petitioner.
We are of the view that the learned trial Court has correctly exercised its discretion in awarding the normal penalty of death as no mitigating circumstances was appearing in favour of the petitioner and the learned High Court was also correct in maintaining the sentences. This petition is without merit. Accordingly, while refusing leave to appeal it is dismissed."
Mercy petition filed by Mushtaq Ahmad was declined by the President of the Islamic Republic of Pakistan. In this backdrop, Fida Hussain petitioner filed W.P.No,8625 of 2015 claiming to be as one of the Walis of Gul Zaman deceased seeking suspension of execution of sentence on his having waived right of Qisas, however, the petition was withdrawn on 9.6.2015 so as to approach the learned trial Court for the 'same relief. The learned trial Court vide order dated 7.7.2015 dismissed application for acceptance of partial compromise, vires whereof, are being challenged through this Constitutional petition.
2. The learned counsel for the petitioner contends that admittedly Fida Hussain is one of the Walls of Gul Zaman deceased who has waived his right of Qisas. The mainstay of the learned counsel is that since the learned trial Court omitted to mention clause (b) of section 302, P.P.C., hence it is to be necessarily construed that Mushtaq Ahmad was convicted under section 302(a), P.P.C. As Qisas, therefore, a beneficial construction would bring his case within the ambit of section 309, P.P.C., thus, opening a space for partial compromise with payment of share of Diyat to the Walls, who are not party to the compromise in lieu of death as Qisas. The learned Law Officer has contested the plea.
3. Heard. Record perused.
4. The punishment of Qatl-e-Amd is provided in Section 302 of the Pakistan Penal Code, 1860 as under:- Whoever commits qatl-e-amd shall, subject to the provision of this chapter be; a) punished with death as Qisas; b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in the either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extent to twenty-five years, where according to the injunctions of Islam, the punishment of Qisas is not applicable; ......."
No doubt, the learned trial Judge while convicting Mushtaq Ahmad, did not specify the clause under which he was sentenced to death and this omission escaped notice throughout and it is in this background that the learned counsel has ingeniously articulated his point that the case of Mushtaq Ahmad convict was to be dealt with under clause (a) of section 302, P.P.C. And as such waiver by Fida Hussain would bring him off the hook. However, on closer scrutiny and overall analysis of entire case, the argument is misconceived. The only punishment provided under clause
(a) of section 302 is death and death alone and Qisas can only be exacted if proof as provided under section 304, P.P.C. Either in the form of voluntary and true confession or evidence within the contemplation of Article-17 of the Qanun-e-Shahadat Order, 1984 is available. Admittedly, conviction of Mushtaq Ahmad is not based upon confession and purgation of witnesses had not been carried out so as to suggest infliction of death penalty as Qisas; despite inadvertent omission to specify dame (b), for all intents and purposes penalty of death has been inflicted thereunder. It is Mushtaq Ahmad's own case before the Hon'ble Supreme Court where alteration of death penalty into life imprisonment was prayed; no alternate penalty is available under clause (a) of the Pakistan Penal Code, 1860; one cannot blow hot and cold in the same breath. Solitary favour by Fida Hussain cannot rescue the convict. Reliance is placed on the case of Zahid Rehman v. The State (PLD 2015 SC 77). Petition is dismissed.