Muhammad Ishaq was proceeded against at a trial on the charge of the murder of his real sister on the pretext that she was not transferring the house inherited by her, from her deceased husband in his name. After delivering copies of the statements to the accused under section 265(x), Cr.P.C. Case was adjourned for framing charge and trial that on the date the heirs of the ,deceased, mother; four brothers and two sisters appeared and they recorded their statements to have compromised the offence and to have waived their right of `Qisas'.And `Diyat'.
2. Learned trial Court accepted the compounding of the right 'of `Qisas' in the case but proceeded to record accused's conviction under section 311, P.P.C. And sentenced him to 5 years' R.I. As Tazir.
Convict filed the instant appeal against his said conviction and sentence.
3. At the hearing after going through the record this Court found it a case not properly conducted and that the case merited retrial on the charge of murder, hence appellant was served with a suo motu notice for retrial that his counsel present at the Bar accepted the notice and himself came forward with a request that on acceptance of his appeal as well the suo motu Criminal Revision the impugned order of conviction and sentence under section 311, P.P.C. Be set aside and case be remanded to the Court for retrial in accordance with law. Learned counsel for the State also agreed to the remand of the case for retrial.
4. Herein it was found that there was not framed a charge to be put to the accused if he was to plead guilty or to claim a trial. There has not come forth independent evidence to prove the guilt of the accused on the charge of murder. Four brothers of the deceased recorded a joint statement, while the mother and two sisters of the deceased recorded separate statements besides the statements of two persons from the local gentry who all stated that the accused has committed the murder of the deceased and since he was their close relation, hence they have compromised the matter with him and waived their right of `Qisas' and `Diyat'. There is no statement of the accused forthcoming on record to admit his guilt and that the offence has been subsequently compounded. The statements of the heirs of the deceased cannot serve the purpose of evidence to hold the accused guilty on the charge of the murder of the deceased. Accused has not been examined under section 342, Cr.P.C. In which he might have been called upon to explain the accusations contained in the statements of the heirs of the deceased. The Court, however, - recorded his observations that the legal heirs were the relations of the accused as well of the deceased and they were naturally compelled to pardon the accused and that the record reported the deceased to have sustained number of injuries and that further on a Court inquiry, perhaps oral inquiry, from -the accused as to why he has committed the murder of his real sister the accused has laughed in a manner showing to have committed an act of valour instead of expressing deep grief and sorrow. Accordingly the trial Court convicted and punished the accused with imprisonment under section 311, P.P.C.
5. True, notwithstanding the provisions of sections 309 and 310, P.P.C. Pertaining to the waiver and compounding of `Qisas' in `Qatl-e-Amd', respectively, the Court can in his discretion punish an offender against whom the right of `qisas' has been waived or compounded with imprisonment up to 10 years as Tazir but having regard to the facts and circumstances of the case. There have thus been laid down prerequisites for the award of punishment under section 311, P.P.C. As the accused is first to be proved as an offender on the charge of `Qatl-e-Amd' liable to `Qisas'; the right of `qisas' must have been waived or compounded by the `Walls' of the victim and last there must be forthcoming facts and circumstances of the case on record to justify punishment of the accused with imprisonment as Tazir. An offender is one who has committed an offence. The word is also capable of meaning a person implicated in the commission of a crime. However, in section 311, P.P.C. The offender shall mean a person who has committed the offence since the question of waiver or compounding of the right of `Qisas' would only arise after the accused is proved guilty.
The incriminating facts and circumstances shall justify the award of punishment of imprisonment as Tazir after having been put to the accused for his explanation and for that matter there shall be necessitated his examination under section 342, Cr.P.C. Instant case has been found replete with legal lapses and deficiencies of evidence on record to hold the accused an offender and to justify the award of punishment of imprisonment as Tazir to him under section 311, P:P.C. ,
6. In the case the offence of murder was committed on 27-7-1990. The offence of murder/`Qatl-e- Amd' was made punishable with `Qisas' liable to waiver or compounding of `Qisas' by the `Walis' of the deceased and further punishable with imprisonment as Tazir under section 311, P.P.C. By Ordinance VII of 1990 published on 5-9-1990 and to come into force on the 12th day of `Rabi-ul- Awal' 1411 Hijri. Under section 338-H, P.P.C. Added by Ordinance VII of 1990 only the provisions of sections 309, 310 and 338-E, P.P.C. Have been given retrospective effect, while other provisions including section 311, P.P.C. Have not been given retrospective effect, meaning thereby that right of `Qisas' can be waived or compounded in case of `Qatl-e-Amd' by the `Walis' of the deceased and that other offences under this Chapter can also be waived or compounded on the pattern of the provisions of sections 309 and 310, P.P.C. Section 338-E, P.P.C. Which has been given retrospective effect further provides that offences other than `Qatl-e-Amd' can be waived or compouned and the Court may in its discretion having regard to the facts and circumstances of the case acquit or award Tazir punishment to the offender according to the nature of the offence. In case of waiver or compounding of right of `Qisas' in `Qatl-e-Amd' there cannot be awarded a Tazir. Punishment to the offender for an offence of `Qatle Amd' committed by him before the commencement of Ordinance VII of 1990 since section 311, P.P.C. Has not been given retrospective effect. On this score alone the award of punishment with imprisonment as Tazir under section 311, P.P.C. In the present case is liable to be set aside since the offence of murder was committed before the commencement of Ordinance VII of 1990.
7.Under section 345(2), Cr.P.C. As amended by Ordinance IV of 1990 the offence of murder was made compoundable by the heirs of the victim but with the permission of the Court. The trial Court did not appear to be agreeable to the waiver/compoundability of the right of `Qisas' in `Qatle Amd' as he proceeded to impose punishment of imprisonment as Tazir on the accused. In the circumstances, he was better to withhold his permission to the compounding of the offence and to proceed with the trial of the accused on merits and not that on one hand he had accepted the compounding of the offence and on the other hand he punished the accused with imprisonment as Tazir.
8. In view of the above, this Court sets aside the judgment and order of the learned Sessions Judge, Peshawar dated 25-4-1992 and remands the case for a fresh trial to Additional Sessions Judge-I, Peshawar before whom the accused shall appear for trial on 5-9-1992. The learned Additional Sessions Judge-1, Peshawar shall, however, independently apply his mind to the facts of the case whether to accord his permission to the compoundability of the offence or not under section 345(2), Cr.P.C. And thereafter to proceed in the matter in accordance with law.