MUHAMMAD SALEEM JESSAR, J.---By this single Judgment, I propose to dispose of abovesaid Criminal Revision Application as well as Criminal Bail Application as both the applications have been filed by one and the same applicant, besides, both the applications are outcome of same FIR.
2. Brief facts giving rise to the filing of abovesaid applications are that applicant Aijaz Ali is facing trial in Sessions Case No.22 of 2018 (re-The State v. Aijaz Ali) being outcome of Crime No.79 of 2017 registered at Police Station Taluka Tando Adam under section 302, P.P.C. The allegations against the applicant/accused is that on 20.12.2017 he committed murder of his real father namely , Gul Muhammad, in presence of complainant Ali Nawaz, nephew Gulzar Ali and uncle Ali Sher and the motive for such alleged murder was stated to be the annoyance of the applicant/accused over solethnization of second marriage by his deceased father. During pendency of said Sessions Case, a compromise was arrive d at between the accused and the legal heirs of deceased. Accordingly an application, under section 345(2), Cr.P.C. for permission to enter into compromise coupled with compromise application under section 345(6), Cr.P.C. were moved, wherein it was prayed that consequent upon the said compromise, the accused/applicant may be acquitted. Learned trial Court called reports from the Mukhtiarkar Tando Adam, NADRA and concerned police regarding ascertainment of legal heirs of deceased and such reports dated 18.10.2019, 15.10.2019 and 19.10.2019 respectively were submitted before the trial Court according to which following persons were stated to be the legal heirs of deceased Gul Muhammad: i) Mst. Mehan Widow ii) Mst. Laila 2 Widow iii) Mst. Sahibzadi Daughter iv) Mst. Shahzadi Daughter v) Mst. Fazeela Son (applicant) (sic)
3. However , learned trial Court vide impugned order counsel dated 13.11.2019, declined to accept the compromise.
The operative part of the impugned order is reproduced hereunder: "9. I am in agreement with the contention of the learned, counsel of the accused that present case is not punishable under Qisas in view of bar contained in section 306(b) and (c), Cr. P. C. but punishable under Tazir and is compoundable under section 345(2), Cr. P. C.; but I am not in agreement with the contention of learned Counsel for the accused that the brother and sister of the deceased are not direct heirs but are heirs of an heir therefore they cannot resist the compromise application. I am of the humble view that after the exclusion of the accused as heir of the deceased, the Complainant and sister of the deceased are the direct heirs of the deceased and have right to resist the compromise application."
4. The applicant/accused has challenged the said order by filing instant Criminal Revision Application and subsequently he also moved abovesaid Criminal Bail Application for grant, of bail.
5. I, have heard learned counsel for the parties and perused the material available on the record.
6. Mr. Dilbar Khan Leghari, learned counsel for the applicant submitted that the impugned order is not in accordance with settled principles of law and is liable to be set aside. He further submitted that while passing the impugned order , learned trial Court has not followed the dictum laid down in the case of Muhammad Yousaf v.
The State and others (PLD 2019 Supreme Court 461) in which all points involved in present case has exhaustively discussed and dealt with by Honourable Supreme Court. iHe prayed for allowing the revision application and setting aside the impugned order .
7. Mr. Nazar Muhammad Memon, Additio nal Prosecutor General Sindh, appearing for the State, submitted that he would follow dictum of law laid down by Honourable Supreme Court of Pakistan in case of Muhammad Yousaf v.
The State and others (PLD 2019 Supreme Court 461). According to him, impugned order is not in consonance with law as well as dictum laid down by, Honourable Supreme Court of Pakistan in case of Muhammad Yousaf (supra ), hence he had no Objection to the grant of instant revision application.
8. Conversely , Mr. Imam Bux Baloch, learned counsel for complainant/brother of deceased opposed the revision application and supported impugned order on the pretext that applicant is the only son of deceased besides other legal heirs therefore, after committing murder of his father he is not entitled to inherit any property or Tarka left by deceased. He further submitted that at the time of death of deceased, his mothe r as well mother of complainant namely Mst. Fatima was alive and she was direct shareholder . Mr. Baloch further submitted that during pendency of proceedings before Trial Court, the mother of deceased as well as mother of complainant has expired hence, according to section 61 of Muhammadan Law, Chapter-VII Hanfi Law and Inher itance, 16th Eddition, when the son/applicant is himself killer of his father , then he is not entitled to inherit the property left by deceased/father .
However , after devolving share upon other legal heirs viz. widows, daughters and mother , the share of mother and brother remains to be devolved amongst them. According to Mr. Baloch, even after demise of mother of deceased, his brother being residuary can inherit the share of mother . Hence, he submitted that impugned order does not suffer from any 'illegality which may require interference by this Court.
9. In rebuttal to arguments of Mr. Baloch , learned counsel for applicant as well as Additional Prosecutor General submitted that issue with regard to share of residuary has also been discussed by Honourable Supreme Court of Pakistan in the case of Muhammad Yousaf (supra) therefore, submissions advanced by learned counsel for complainant, in view of dictum laid down by Apex Court in case of Muhammad Yousaf (supra), carries no weight.
10. In the circumstances, Mr. Dilbar Khan Leghari, did not press Criminal Bail Application bearing No.S-74 of 2020 filed by applicant Aijaz Ali as it has become infructuous. Learned Additional Prosecutor General as well as learned counsel for the complainant has no objection. Order accordingly .
11. The bone of contention in the instant case is; as to whether the complainant All Nawaz, who is brother of the deceased, and Met. Raj Bai, sister of the deceased, have a right to enter or resist the compromise entered into between the applicant / accused and the widows and daughters of the deceased. In fact, the said point involved in the instant case has exhaustively , been dealt with by a Larger Bench consisting of seven Honourable Judges of Apex Court in case of Muhammad Yousaf v . The State and others reported in PLD 2019 Supreme Court 461 .
12. The brief facts of the case of Muhammad Yousaf (supra) were that during the pendency of a Criminal Appeal, filed by two accused against their conviction and capital punishment, before Honourable Lahore High Court, Multan Bench, Multan, a Criminal Miscellaneous Application was filed before the High Court seeking acquittal of the accused / respondents Nos.2 and 3 from the charge under section 302(b), P.P.C. read with section 34, P.P.C. on the basis of a compromise arrived at between the said accused/responden ts and the heirs of deceased Muhammad Aslam which matter was referred to by the High Court to the learne d District and Sessions Judge, Vehari for its verification. The report dated 25.02.2009 submitted in that regard by the learned District and Sessions Judge, Vehari showed that Muhammad Aslam deceased was survived by his father namely Waryam, his widow namely Mst. Razia Bibi and his son namely Muhammad Akmal out of whom the father of the deceased had denied entering into any compromise with respon dents Nos.2 and 3 whereas the widow and the son of the deceased had confirmed that they had entered into a compromise with respondents Nos.2 and 3 and that they had forgiven the said accused / respondents in the name of Almighty Allah and they had no objection to acquittal of the said respondents from the charge of murder on the basis of the compromise. During pendency of said Criminal Miscellaneous Application Waryam, the father of Muhammad Aslam deceased, died and thereafter another Criminal Miscellaneous was filed before the High Court seeking acquittal of respondents Nos.2 and 3 from the charge of murder because all the surviving heirs of Muhammad Aslam deceased were agreeable to a compromise with the said respondents. The matter of compromise was again referred to by the High Court to learned District and Sessions Judge, Vehari for its verification. The report dated 12.05.2010 submitted by the learned District and Sessions Judge, Vehari in that regard confirmed that the surviving, heirs of Muhammad Aslam deceased, i.e. his widow and son had acknowledged their compromise with respondents Nos.2 and 3 and that they had forgiven the said respondents in the name' of Almighty Allah and they had no objection to the respondents' acquittal from the charge of murder on the basis of the compromise. The learned District and Sessions Judge, Vehari had; however , pointed out in that report that on an earlier occasion the father of Muhammad Aslam deceased, an heir of the said deceased, had refused to enter into any compromise with respondents Nos.2 and 3 and after his subsequent death his four sons namely Muhammad Yousaf, Muhammad Ashraf, Atta Ullah and Noor Ahmad, brothers of Muhammad Aslam deceased, were also not agreeable to a compromise with respondents Nos.2 and 3. The learned District and. Sessions Judge, Vehari was of the opinion that the said sons of Waryam and brothers of Muhammad Aslam deceased were not heirs of Muhammad Aslam deceased and, thus, their refusal to enter into a compromise with respondents Nos.2 and 3 was irrelevant to the compromise voluntarily entered into by the surviving heirs of the deceased with respondents Nos.2 and 3. According to, the learned District and Sessions Judge, Vehari, the acclaimed compromise between the surviving heirs of Muhammad Aslam deceased and respondents Nos.2 and 3 was voluntary and complete. After perusal of the said report and after finding the compromise between the surviving heirs of Muhammad Aslam deceased and respondents Nos.2 and 3 to be voluntary and complete, a learned Division Bench of the Lahore High Court, Multan Bench, Multan accepted the compromise vide judgment dated 06.10.2010, partially allowed Criminal Appeal No. 534 of 2005 filed by respondents Nos.2 and 3, acquitted to said respondents of the charge under section 302(b), P.P.C. read with section 34, P.P.C. on the basis of compromise and dismissed the said appe al to the extent of the convictions and sentences of said respondents for the offence under section 324, P.P.C. read with section 34, P.P.C. while answering the Murder Reference in the negative.
13. Being aggrieved by the judgment passed by the Lahore High Court, Multan Bench, Multan, on 06.10.2010. the appellant/complainant filed Criminal Petition for Leave to Appeal No. 1091-L of 2010 before Honourable Supreme Court and on 24.12.2010 leave to appeal was granted in the following terms: "Inter alia contends that the learned High Court has allowed compromise of the offence of murder on the application of two legal heirs namely Razia Bibi (wife of the deceased) and Muhammad Akmal (son of the deceased) notwithstanding the fact that the father of the deceased namely Waryam who was alive at the time of murder of.Sajid [actually Muhammad Aslam] but died when the application for compounding the offence was made, his heirs were 'walis' and the offence could not have ,been compounded without their concurrence.
2. Having heard learned counsel for the petitioner at some length, leave is granted inter alia to consider whether the heir of an heir of the victim could be a 'wall' of the said victim and whet her the law laid down by this Court factually the Lahore High Court, Lahore] in Ahmed Nawaz v. State (PLD 2007 Lahore 121) would be attracted to the facts of the case in hand?"
14. After hearing the learned counsel for the parties at length, Honourable Supreme Court dismissed the Criminal Appeal filed by the complainant and maintained the judgment passed by Honour able Lahore High Court, Multan Bench, Multan, whereby on the basis of compromise arrived at between the parties, the two accused persons were acquitted. It would be advantageous to reproduce hereunder the relevant portions from the judgment of Honourable Supreme Court passed in the case of Muhammad Yousaf (supra)
"In view of this settled and recognized principle when the law of the land provides that in a case of Ta'zir an offence of qatl-i-amd under section 302, P.P.C. may be compounded by the "heirs of the victim" and when an heir of a victim is only a person who inherits directly from the victim then what is clearly meant by section 345(2), Cr.P.C. is that only a person who can directly inherit from the victim is the person who can compound the offence of qatl-i-amd of the victim and none else.
B. We note that the concept of wall relevant to a case of Qisas is not relevant to a case of Ta'zir which belongs to a different regime of criminal law and is governed by separate and distinct principles. It has to be understood very clearly that in cases of Qisas the term wali means the entire body or group of persons who are entitled to claim Qisas for q qatl-i-amd and such persons include those who are heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolves upon death of an heir of the victim even if such heirs of the heir of the victim do not themselves inherit from the victim directly . In cases of Ta'zir the law has conferred the capacity to compound only upon the heirs of the victim and has not provided for devolving of the capacity 'to compound upon an heir of an heir of the victim as has been provided in cases of Qisas, as discussed above."
"10. In the present case of Ta'zir the offence of murder of Muhammad Aslam could be compounded only by the heirs of the said victim and all the surviving heirs of that victim had voluntarily compounded the said offence with respondents Nos.2 and 3. The High Court was, therefore, quite correct in holding that the appellant and his brothers, who were heirs of a subsequently dying heir of the victim, were not relevant to the matter of compounding of the of fence."
"As already observed above, the concept of devolving of the right of Qisas upon an heir of an heir/wall of the victim relevant to a case of Qisas is not applicable to cases of Ta'zir. In the absence of any devolving of the capacity to compound in a case of Ta'zir the capacity to compound possessed by an heir of the victim at the time of murder of the victim stands exhausted upon the subsequent death of that' heir. Being the father and an heir of Muham mad Aslam deceased Waryam had a capacity to compound the relevant offence but he had not compounded the offence during his own lifetime and upon Waryam's death his capacity to compound stood exhausted and the same was not heritable as Waryam's heirs were not heirs of Muhammad Aslam deceased because they did not, and could not, inherit from him. After Waryam's death his heirs could not be treated as heirs of Muhammad Aslam deceased and the only heirs of Muhammad Aslam deceased left in the field at such stage were those surviving heirs of Muhammad Aslam deceased who could inherit directly from him and they could compound the offence throughout their lifetime irrespective of timing of Waryam's death . In cases of Ta'zir section 345(2), Cr.P.C. does not specify any time when compounding of an offence may take place and the provisions of section 345(2), Cr.P.C. do not place any embargo upon compounding of the relevant offence by the surviving heirs of a victim at a time when one or more of the heirs of the victim has/have already died.
Placing an embargo upon the surviving heirs of a victim in such a situation may amount to committing violence upon the provisions of section 345(2), Cr .P. C. which we are not ready to commit.
12. Another thing to be clearly understood in the present context is that there is a difference between devolving of a right of Qisas and devolving of the status of an heir. Section 307, P.P.C. recognizes that the right of Qisas devolves on an heir of an heir of the victim and because of devolving of the right of Qisas on him an heir of an heir of the victim also becomes a wali of the victim and in that devolved capacity of wali such heir of an heir of the victim can also waive or compound the relevant offence. Section 307, P.P.C., however , does not provide or recognize that through such devolving of the right of Qisas on him an heir of an heir of the victim also becomes or is recognized as an heir of the victim . Such distinction between devolving of the right of Qisas and devolving of a right to inherit from the victim has to be clearly understood because the first is relevant to the concept of Qisas whereas the second is relevant to the 'concept of Ta'zir. It has already been observ ed by us above that in cases of Qisas the term wali means the entire body or group of persons who are entitled to claim Qisas for a qatl-i-amd and such persons include those who are heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolves upon death of an heir of the victim even if such heirs of the heir of the victim do not themselves inherit from the victim directly . In Qisas the tie of blood with the victim is the governing consideration even if a wall in his devolved capacity is not in a position to directly inherit from the victim whereas in Ta'zir the sole consideration for the capacity to compound is the capacity to inherit directly from the victim . The present case offers a classical example of such a distinction because by virtue of section 307, P.P.C. the appellant and his brothers might have become wali of Muhammad Aslam deceased on account of possessing a devolved right of Qisas (relevant to a case of Qisas) but they are not the heirs of Muhammad Aslam deceased for the purposes of compounding of the offence under section 345(2), Cr.P.C. in this case of T a'zir.
"15. As a result of the discussion made above we have not been able to take any legitimate exception to the impugned judgment passed by the Lahor e High Court, Multan Bench, Multan. The case in hand was not a case of Qisas but was of Ta'zir. Under the Islamic law of inheritance the brothers of Muhammad Aslam dece ased in this case did not inherit from the deceased directly and even when the father of Muhammad Aslam deceased, an heir of the said deceased, subsequently died the brothers of Muhammad Aslam deceased, including the present appellant, did not become Muhammad Aslam deceased's heirs because they stood excluded by a surviving son of Muhammad Aslam deceased who was closer to the deceased in degree in the matter of inheritance. In this case of Ta'zir only the heirs of the deceased could compound the offence of murder and the appellant and his brothers, all brothers of Muhammad Aslam deceased, did not and could not inherit from Muhammad Aslam deceased either directly or through their father and, thus, they never qualified as "heirs of the victim" for the purposes of section 345(2), Cr.P.C. This appeal is, therefore, dismissed."
(Emphasis is supplied for sake of convenience)
15. The above case of Muhammad Yousaf (supra) is applicable to the instant case on all four corners. Following the dictum laid down by the Apex Court in the aforesaid case, it can safely be held that the complainant Ali Nawaz and Mst. Raj Bai, brother and sister of the deceased respectively , being not direct heirs of the deceased but heirs of an heir of the deceased, cannot resist the compromise arrived at between the applicant/accused and the direct legal heirs of the deceased. It is the exclusive right/authority of the widows and daughters of deceased Gul Muhammad to enter into compromise with the applicant / accused. Accordingly , the conclusion arrived at by the trial Court, as quoted above, being not in consonance with the dictum laid down by Honourable Supreme Court in the case of Muhammad Yousaf (supra), are not tenable.
16. For the foregoing reasons, instant Criminal Revision Application is hereby allowed and the impugned order dated 13.11.2019 passed by learned Ist Additional Sessions Judge, (M.C.T .C.) Tando Adam is set aside.
Consequently , Compromise Application filed in Sessions Case No.22 of 2018 (re-The State v. Aijaz Ali) is allowed and as a result thereof accused/applicant Aijaz Ali is hereby acquitted of the charges. He shall be released forthwith if his custody is no more required in any other custody case.
17. Consequently , Criminal Bail Application No.5-74 of 2020 filed by applicant Aijaz Ali, having not been pressed by learned counsel for the applicant, is also disposed of as having become infructuous.