Sher Ali and Umar Ali appellants were charged along with their mother Mst. Ali Jana for the murder of their brother Ashraf Ali Khan by firing at evening time on 30-5-1991 in the limits of village Zonda Ghaibi in furtherance of their common intention under section 3()2/34, P.P.C. They denied the charge and the trial commenced.
2. Anyhow at the very outset the trial Court was apprised of there having been effected a genuine compromise between the parties and the offence of murder to have been resultantly compounded. The 'Court recorded the statements of Mst. Dilshad Begum widow of the deceased, Zafar Ali Khan brother of the deceased, Ghazi Khan father-in-law of the deceased and Bahadur Khan and Saifullah Khan the local genty who all verified the genuineness of the compromise.
3. Herein the deceased died issueless leaving behind heirs/walies in Mst. Dilshad Begum widow and Zaffar Ali Khan brother besides two brothers in appellants and co-accused (acquitted) Mst. Ali Jan his mother. The two `walies' in a widow and brother of the deceased stated that Ashraf Ali Khan the deceased was murdered for which the appellants and their mother Mst. Ali Jana were charged and that they have effected a compromise with them and have waived their right of `qisas' and `diyat' in the name of Allah. The local gentry and father-in-law of the deceased also made statements to the same effect. Thereafter the learned trial Court proceeded to record the impugned judgment acquitting all the accused of the charge of murder but observed that although the widow of the deceased has effected a compromise with the accused, however, from the record it appeared that the appellants have committed the murder of their own brother on a very petty matter just for nothing and hence keeping in view the severity of offence he convicted and sentenced the appellants to 4 years' R.I. Each under section 311, P.P.C.
4. In section 302(a), P.P.C. The offence of `qatl amd' has been made punishable with death as `qisas' and under clause (b) ibid in case of non --availability of the proof specified in section 304 i.e., a voluntary and true confession of the commission of the offence by the accused or evidence of two sane Muslim adult male witnesses fulfilling the requirement of `Tazkia Tu Shuhood' as witnesses of the occurrence the offence is punishable with death or imprisonment for life as `Tazir' while under clause (c) where punishment of `qisas' is not punishable according to the Injunctions of Islam the offender can be awarded punishment with imprisonment upto 25 years. Section 309 pertains to waiver-Afw (-c ) of `qisas' in `qatl amd' by adult sane walies subject to certain restrictions. So section 310 pertains to compounding of `qisas' in `qatl amd'. It is section 411 which vests a reserved power in the Court to punish an offender of `qatl amd' with imprisonment upto 10 years as `tazir' even after waiver or compounding of right of `qisas', no doubt, the punishment to be awarded is in the discretion of the Court having regard to the facts and circumstances of the case.
There may further be awarded punishment upto 14 years as `Tazir' to such an offender, if he is a previous convict, habitual or professional criminal. Thus punishment of `Tazir' after waiver or compounding of right of `qisas' in `qatl amd' can be awarded by the Court in its discretion having regard to the facts and circumstances of the case and such facts and circumstances of the case must form a part of the record.
5.Herein the appellants did not plead guilty to the charge of `qatl amd' and claimed a trial. The Court did not record the evidence but only recorded the statements of the `walies' of the deceased and the local gentry who were not cited as witnesses except Mst. Dilshad liegum widow of the deceased who was also not an eye-witness of the occurrence and her evidence was confined to the enmity between the deceased and his brother and mother over separation and further about exchange of hot words between them on a day preceding the occurrence. At the trial she only stated that her deceased husband was murdered for which the appellants and their mother were charged but that she has effected a compromise with them and has waived her right of `qisas' and `diyat' in the name of Allah. There was thus no legal evidence brought on record spelling out the facts and circumstances to make the trial Court believe that it was a gruesome murder committed by the brothers on a petty matter just for nothing as he observed and that they deserved a `Tazir' punishment Besides, even the facts and circumstances of the case as lurking in the mind of the trial Court were not put to the appellants for their explanation and still those so-called facts and circumstances have been used by the trial Court in recording the appellants' conviction under section 311. P.P.C. Section 342, Cr.P.C. Places the Court lender obligation to provide an opportunity to an accused to explain the prosecution evidence which is going to be used to convict him. Failure to question an accused about the circumstances against him amounts to total failure of justice and the trial is vitiated.
Sections 309 and 310. P.P.C. Pertain to the waiver and compounding of right of `qisas' in `qatl amd' and the offence is liable to `qisas' only on proof prescribed under section 304 either on a voluntary and true confession of the commission of the offence by the accused or on the evidence of two sane Muslim adult male eye-witnesses of the occurrence. In the case in hand mode of proof prescribed for `qatl amd' liable to `qisas' was wholly wanting and lacking. It was thus a case of `qatl amd' liable to `Tazir' under section 302(b), P.P.C. The offence of `qatl amd' under section 302, P.P.C.
Both `qatl amd' liable to `qisas' and `tazir' have been made compoundable by the heirs of the deceased under section 345, Cr.P.C. It was thus a case of the compounding of the offence of `qatl amd' liable to `Tazir' by the heirs of the deceased while the p other heirs in two brothers and mother of the deceased were charged as accused. Section 311, P.P.C. Provides for punishment as `Tazir' after waiver or compounding of right of `qisas' in `qatl amd' under sections 309 and 3101 respectively, and the section has no application to the case of `qatl amd' liable to `Tazir' that the composition of the said offence under section 345, Cr.P.C. Shall have the effect of an acquittal of the accused.
7.Consequently, the conviction and sentence of the appellants as 'Tazir' under section 311, P.P.C.
Were found wholly illegal and also unwarranted in the facts and circumstances of the case and the same are hereby set aside. Appellants shall be set free, if not wanted in any other case.