KHALIL-UR-REHMAN RAMDAY, J.- One Muratab Ali had been tried by a learned A.S.J. Of Faisalabad for the murder of Mst. Zakia Parveen who was not only the wife of a brother of Muratab Ali but was also a sister of the wife of Muratab Ali.
2. Through the judgment dated 10.11.1990, the said accused had been found guilty of the charge under section 302 P.P.C, and was punished with death and a i.e of Rs. 20,000/- or three years R.I. In default. He had also been directed to pay an amount of Rs. 20,000/-as compensation to the heirs of the deceased or to suffer six months R.1, in default of the said compensation.
3. M.R. No. 95/91 seeks confirmation of the said sentence of death while Muratab Ali convict has filed Criminal Appeal No. 768/90 to impugn the above- noticed conviction and sentences recorded against him. Both these matters are being disposed of together through this judgment.
4. During the pendency of these matters it had been reported that some of the heirs of Mst. Zakia Parveen deceased had granted A WF to Muratab Ali appellant. Muhammad Asif Javed who was the husband of the said deceased has appeared before us today in support of this plea of compromise.
5. The statement of the said Muhammad Asif Javed has been separately recorded by us on oath after his identification by Mr. MA. Zafar, Advocate. He deposed that he was the husband of Mst.
Zakia Parveen deceased and out of this wedlock three children, namely, Mst. Shama Javed (8/9 years old daughter), Mst. Rabia Javed (7/8 years old daughter) and Qamar Javed (6/7 years old son) had been born. He added that besides the above-mentioned heirs, Mst. Zakia Parveen deceased had also been survived by her parents, namely, Abdul Aziz (father) and Mst. Amina Bibi (mother). From his statement it further transpired that he is elder brother of Muratab Ali appellant who was married to a sister of Mst. Zakia Parveen deceased. Asif Javed declared that he had granted AWF to Muratab Ali appellant for the murder of Mst. Zakia Parveen deceased and that he had also compounded the offence in question with Muratab Ali appellant on behalf of his minor children, namely, Mst. Shama Javed, Mst. Rabia Javed and Qamar Javed.
6. One Mst. Rafia Bibi who was present in Court and who claimed to be the wife of Muratab Ali appellant and a sister of Mst. Zakia Parveen deceased, sought permission to make a statement.
She was identified by Mr. M.A. Zafar, Advocate and her statement was also recorded by us on oath after we had allowed her to make the said statement.
7. Mst. Rafia Bibi stated before us that she was the wife of Muratab Ali appellant and a sister of Mst.
Zakia Parveen deceased. She had added that she had appeared as an eye-witness against Muratab Ali appellant at the present trial. She further submitted that she was not an heir of Mst.
Zakia Bibi deceased yet she had also pardoned Muratab Ali appellant. She further submitted that she had three children from Muratab Ali appellant to bring up and consequently prayed that Muratab Ali appellant be treated with leniency.
8. From the above statements recorded by us and from the statement of Mr. M.A. Zafar, Advocate, made at the bar, it further transpired that the parents ol Mst. Zakia Parveen deceased, namely, her father Abdul Aziz and her mother Mst. Amina Bibi, had refused to grant A WF to the appellant or even to compound the murder in question with him.
9. The position which thus emerges is that some of the above-mentioned heirs ol Mst. Zakia Parveen deceased have waived their right of QISAS in respect ol the murder ol Mst. Zakia Parveen deceased or have compounded the offence in question with the said appellant while the remaining heirs have not joined in this compromise.
10. Such a situation is covered by the amended provisions of section 311 P.P.C, as amended bv Ordinance No. XII of PW3.
11. Consequently, the conviction and sentences recorded against Muratab Ali appellant under section 302 P.P.C, through the impugned judgment are set aside. The compensation directed to be paid by the said appellant under the said charge through the said impugned judgment is also set aside. In view of the fact that all the heirs have not joined in the compromise and keeping in view the facts and circumstances under which Muratab Ali appellant had committed the murder in question, he is punished with ten years R.I. By way of TAZIR as envisaged by the newly amended provisions of S. 311 P.P.C.
12. In view of the provisions of S. 309 P.P.C., the appellant is liable to pay DIYAT tt) the lather and mother of Mst. Zakia Parveen deceased who have not waived their right of QISAS in the murder in question. The appellant is also obliged to pay BADAL-E-SULH to the above-mentioned three children of the deceased who are minors. The shares of all these heirs in DIYAT are calculated as under:- Father 1 /6th Rs. 28,500.00 Mother 1/6th Rs. 28,5(X).00 Minor (son) 10/48th Rs. 35,625.00 Minor (daughter) 5/48th Rs. 17,812.50 Minor (daughter) 5/48th Rs.17,812.50
13. The appellant shall not be released from jail till the above amount is paid by him. He is directed to purchase Defence Savings Certificates in the name of the parents of Mst. Zakia Parveen deceased, namely, Abdul Aziz and Mst. Amina Bibi as also in the names of the three minor children of the deceased, namely. Mst. Shama Javed, Mst. Rabia Javed and Qamar Javed.
14. The appellant shall be allowed the benefit of the provisions of S. 382- B, Cr.P.C.
15. Murder reference No. 95/91 and Criminal Appeal No. 768/90 arc disposed of in the above terms.