' ABDUL KARIM KHAN KUNDI, J.---By his judgment and order dated 7-4-1990 the learned Additional Sessions Judge-II, Charsadda, absolved Bagh Hussain Shah, co-accused of the charge of murder of Hassan Shah by firing at him on 1-12-1987 at 6-30 hours in the shop of the deceased within the limits of village Majoki in furtherance of common intention under section 302/34, P.P.C. By extending him the benefit of doubt but proceeded to convict and sentence to death Abdul Wahab appellant on the said charge where against the convict filed appeal against his conviction and sentence and the trial Court made a reference to this Court for confirmation of the death sentence.
2. At the hearing of the appeal and murder reference, the convict's brother and the victim's heirs appeared in person and the major heirs of the deceased in mother, widow and three brothers recorded a joint statement that they have compromised the offence and have pardoned and forgiven the appellant of the charge of murder of the deceased. They further stated that the deceased had also three minor daughters living under their care and guardianship, and to safeguard their interests, brother of the appellant has transferred a house valuing Rs,1,20,000 with possession in their names and that there will be also executed a registered transfer deed in respect of the house in the names of the minor daughters of the deceased within a fortnight. They requested the Court to accept the compromise and set free the appellant. Later on, a registered transfer deed was also produced vide a house valuing Rs,1,20,000 was transferred with possession in favour of the minor daughters of the deceased in consideration of Diyat amount of Rs,1,14,000, their rateable share.
3. We have found that the appellant was held guilty of the charge of Qatl-iAmd and as such under section 302, P.P.C., the offence was punishable with death as Qisas, death or imprisonment for life as Tazir or imprisonment upto 25 years in case according to the injunctions of Islam the punishment of Qisas is not applicable. Section 305, P.P.C. States that in case of qatl the heirs of the victim according to his personal law shall be his "Walis". Under section 307, P.P.C., Qisas for Qatl-i- Amd is not to be enforced if any Wali voluntarily and without duress to the satisfaction of the Court waives the right of Qisas or compounds his right of Qisas. Under section 309, P.P.C., an adult sane Wali may at any time and without any compensation waive his right of Qisas but right of Qisas cannot be waived where it vests in a minor or insane or Government as Wali. Further any one of the Walis may waive the right of Qisas but the Wall who does not waive the right of Qisas shall be entitled to his share of Diyat.
4. The adult sane Walis of the deceased in mother, widow and three borthers have waived their right of Qisas without any compensation. Since we are satisfied that their waiver as such is voluntary and without duress, accordingly we accept their waiver i.e, Afw of Qisas in Qatl-i-Amd of the deceased. Under section 310(2), a Wali of minor or insane can compound the right of Qisas on behalf of a minor or insane Wali but against the value of Badal-i-Sulh, not less than the value of Diyat. In the instant case, for and on behalf of the three minor daughters of the deceased who are entitled to 2/3rd share, their Walis in a mother, grandmother and three real uncles have compounded the right of Qisas on their behalf against the value of Badal-i-Sulh in transferring a house of the value of Rs,1,20,000 with possession in their favour by registered deed. Accordingly we accept the compounding of Qisas in Qatl-i-Amd on their behalf under section 310, P.P.C. The value of Diyat prescribed under section 323, P.P.C. Is not to be less than the value of 30,630 grams of silver. The Federal Government has declared the value of the silver in the said weight in the sum of Rs,1,70,000. 2/3rd share of the minors comes to Rs,1,13,334. We have found that the interest of the minor Walis of the deceased has been duly safeguarded in the compounding of Qisas in Qatl-i-Amd since they have been transferred with possession a house in the value of Rs,1,20,000 by a registered deed.
5. In short on one hand we have accepted the waiver i.e, the Afwa of the Qisas in Qatl-i-Amd on the part of the adult sane Walis in a mother, widow and three brothers of the deceased under section 309, P.P.C. And have further accepted the compounding of the Qisas in Qatl-i-Amd by the Walis of the three minor daughters of the deceased who have been paid the value of Badal-i-Sulh in the sum of Rs,1,20,000 more than the value of the Diyat of their share by way of transfer with possession of a house by a registered deed. Hence in the overall public interest as well in the interest of the adult sane Walls and also in the interest of the minor Walls and also having regard to the facts and circumstances of the case, we accept the waiver and compounding of Qisas and do not proceed to impose, any punishment on the appellant under section 311, P.P.C. Consequently, we accept the appeal, set aside the conviction and sentences and order the appellant's release forthwith, if not wanted in any other case. The murder reference is answered in negative.