' SALEEM AKHTAR, J.--Shaukat Ali alias Shoka was awarded death sentence under section 302, P.P.C.
With fine of Rs,30,000, in default to undergo 3 years' R.I. Fine if recovered, half of it was to be paid to the heirs of the deceased. While convicting and sentencing Shaukat Ali, other accused were acquitted. In appeal the High Court altered the death sentence into life imprisonment. The petitioner then filed petition for special leave to appeal No,140-L/94 which is pending . Shaikh Muhammad Aslam also filed petition against the judgment of the Lahore High Court passed in appeal filed by Shaukat Ali and also against the judgment dismissing Criminal Revision filed by him against the acquittal of other co-accused. Deceased Muhammad Islam has left behind the following heirs:--
1. Mst. Ramzan Bibi -- mother
2. Mst. Bilquees Bibi - widow
3. Mst. Ulfat Bibi - daughter aged 15 years
4. Asad Butt - son aged 11 years
5. Mst. Naushaba - daughter aged 10 years
6. Mst. Kiran - daughter aged 7 years
7. Chand Butt - son aged 5 years
2. Petitioner Shaukat Ali has filed an application alleging that the legal heirs of the deceased have compromised. The matter was referred to the District and Sessions Judge, Gujrat for report, who recorded the statement of Mst. Ramzan Bibi, Mst. Bilqees Bibi, Fida Hussain, Syed Ibrar Hussain, the marginal witnesses of the compromise deed, Muhammad Younus Sub-Inspector, S.H.O. Police Stattion City Jalalpur Jattaan, Ms. Ulfat Bibi, the daughter and Mst. Bilqees Begum, the widow of the deceased. From the report as well as the statement of the persons recorded by the learned District and Sessions Judge, it is clear that Mst. Ramzan Bibi, the mother of the deceased, has refused to compromise the case. The widow for herself as well as on behalf of minor children has agreed to compromise. The share of Diyat amount of the minors as well as the widow amounting to Rs,2,03,000 has been deposited by the petitioner with the Assistant Registrar of this Court. As mother of the deceased has not agreed to compromise, the learned counsel for the petitioner contended that her share of the Diyat amount may be deposited in Court and the petitioner should be acquitted. In support of this contention the learned counsel has referred to section 309, P.P.C.
Which reads as follows:-- "309. Waiver--Afw of Qisas in Qatl-i-Amd.--(1) In the case of Qatl-i-Amd an adult sane Wali may, at any time and without any compensation, waive his right of Qisas: ' Provided that the right of Qisas shall not be waived--
(a) where the Government is the Wali; or
(b) where the right of Qisas vests in a minor or insane;
(2) where a victim has more than one Wali, any one of them may waive his right of Qisas: ' Provided that the Wali who does not waive the right of Qisas shall be enttitled to his share of Diyat.
(3) where there are more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas of the Wali of the other victim;
(4) where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas against the other offender."
3. The learned counsel referring to proviso to subsection (2) of section 309 contended that on that analogy the legal heir who does not agree to compromise shall be entitled to his share of Diyat. It was pointed out to the learned counsel that section 309 is applicable only in those cases where punishment has been awarded for Qatl-i-Amd by way of Qisas and not to cases in which sentence has been passed by way of Ta'zir or under any other provision of P.P.C. Which is not covered with section 309. The learned counsel for State has referred to Safdar Ali and others v. The State and another (PLD 1991 Supreme Court 202) but in our view this is not applicable to the question raised here. The question to be considered in the present case is that where punishment is awarded by way of Ta'zir, can principle of section 309 apply for compromise of the case. In this regard reference can be made to section 345, Cr.P.C. Which makes the offence punishable under section 302, P.P.C.
Compoundable by the heirs of the victim. The question arises whether a case under section 302, P.P.C. Can be compounded if all the heirs do not agree to compromise. These questions are of general importance which will arise in a large number of cases and require an authentic judgment.
Notice may, therefore, be issued to the Attorney-General and Advocate-General of all Provinces.
We also appoint Mr. Khalid Ranjha, Advocate and Mr. Asif Saeed Khan Khosa, Advocate as amicus curiae to assist the Court on these questions. The office should fix a date of hearing in consultation with the Attorney General, Advocates-General and Advocates appointed as amicus curiae. A copy of this order may be sent to the learned amicus curiae and they also be supplied the copies of any other document required by them in this regard by the office.