' Mumtaz, Machia and Ramzan who are real brothers were arrested on the 31st of August, 1996, in pursuance of a case registered against them vide F.I.R. No,134 of 1996, dated the 14th of August, 1996, at Police Station Qadirpur of District Jhang, under section 302/34, P.P.C. Regarding an occurrence which took place on the 14th of August, 1996, at evening time in the area of Mauza Haiden which is about 11 kilometers from Police Station Qadirpur of District Jhang where F.I.R. Was lodged on the same day at 6-50 p.m. By Ghulam Haider.
2. According to the prosecution Mumtaz and Machia petitioners were armed with .12 bore guns while Ramzan petitioner was empty-handed. The allegation against Mumtaz and Machia petitioners is that they fired at Mst. Zarina deceased as a result of which she died. Mst. Zarina deceased was the wife of Ramzan petitioner and sister of co-accused Allah Ditta. The allegation against Ramzan petitioner is that although he was empty-handed yet he stopped the bicycle of Ata Muhammad deceased. Thereafter, he along with Mumtaz dragged Mst. Zarina deceased out of her house. Mumtaz and Machia fired at Mst. Zarina deceased while co-accused Allah Ditta a brother of Mst. Zarina deceased while armed with a .12 bore gun fired at Ata Muhammad deceased.
Both Mst. Zarina and Ata Muhammad deceased died at the spot.
3. Bail is sought essentially on the ground that the legal heirs of Mst. Zarina deceased have forgiven the petitioners. Mst. Zarina is survived by the following legal heirs:--
(i) Mst. Jannatan Bibi, mother;
(ii) Pehlwan, brother;
(iii) Co-accused Allah Ditta, brother;
(iv) Ramzan, petitioner, husband, and finally
(v) Five children, all minors.
4. Learned counsel for the petitioners submits that this is not a case of section 302, P.P.C. But section 306, P.P.C., which reads as follows:-- "306. Qatl-i-amd shall not be liable to Qisas in the following cases, namely:---
(a) When an offender is a minor or insane: Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;
(b) when an offender causes death of his child or grandchild, how howsoever; and
(c) when any Wali of the victim is a direct descendant, how howsoever, of the offender."
' In order to support his argument learned counsel for the petitioners places reliance upon the cases of Khalil-uz-Zaman v. Supreme Appellate Court Lahore and 4 others reported in PLD 1994 SC 885 and Manzoor v. The State reported in 1992 PCr.Li 1374.
5. Section 306, P.P.C. Lays down three exceptions to section 300, P.P.C. Section 300, P.P.C. Defines culpable homicide amounting to murder (Qatl-iAmd) and lays down that:-- "300. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-e-Amd."
6. Section 306, P.P.C. Classifies conditions where Qatl-e-Amd is not liable to Qisas. The first is where the offender is a minor or insane. The second is where the deceased, is a child or grandchild, how howsoever, of the offender and the third is where any Wali of the deceased is a direct descendant howlowsoever of the offender.
7. The word Wali for the purpose of section 306, P.P.C. Has been defined in clause (m) of section 299, P.P.C. As a person entitled to claim Qisas.
8. Learned counsel for the petitioners submits that Mst. Jannatan Bibi mother of Mst, Zarina deceased and Pehlwan brother of Mst. Zarina deceased have forgiven the petitioners in the name of Almighty Allah and have sworn affidavits to that effect which have been placed on record by the learned counsel for the petitioners. Thus, legally, according to learned counsel for the petitioners the said two legal heirs of Mst. Zarina have exercised their right of waiver-Afw of Qisas in Qatl-e- Amd under section 309, P.P.C. Which reads as follows:-- "309(1). In the case of Qatl-e-Amd, and 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 entitled 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 of the other offender."
' A bare reading of sections 306 and 309, P.P.C. Reveals that under clause (c) of section 306, P.P.C.
The Wali of the victim has to be a direct descendant how howsoever of the offender, therefore, to the extent of Ramzan petitioner, because there are 5 children, although all minors, the case would go out of the ambit of section 300, P.P.C. And fall within the ambit of clause (c) of section 306, P.P.C.
And the reliance upon the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others reported in PLD 1994 SC 885 to the extent of Ramzan petitioner is correct. However, the ratio decided of the said case is not applicable as far as Mumtaz and Machia petitioners are concerned.
9. Section 309, P.P.C. Creates the right of waiver in case of Qatl-e-Amd in favour of a Wali who must be sane and an adult and, therefore, provides in clause (b) subsection (1) of section 309, P.P.C. That right of Qisas shall not be waived where it vests in a minor or insane person.
10. Therefore, subsection (2) of section 310, P.P.C. Provides that:- "Where a Wali is a minor or an insane, the Wali of such minor or insane Wali may compound the right of Qisas on behalf of such minor or insane Wali: ' Provided that the value of Badal-e-Sulh shall not be less than the value of Diyat."
' In this case the Wali of five minor children is Ramzan (petitioner No,3) being their real father.
Section 311, P.P.C. Provides that:-- "311. Notwithstanding anything contained in section 309 or section 310, where all the Wali do not waive or compound the right of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which extend to fourteen years as Tazir: ' Explanation.--- For the purpose of this section, the expression Fasad- fil-Arz shall include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed."
11. In the instant case apart from Mst. Zarina deceased there is yet another deceased, namely, Ata Muhammad and it is nobody's case that his legal heirs have also forgiven the petitioners.
' The second case relied upon by the learned counsel for the petitioners Manzoor v. The State reported in 1992 PCr.LJ 1374, was a case registered under section 322, P.P.C. Where the allegation was that the petitioner had electrified a water tank behind his shop and when Abdul Aziz deceased put his hand therein he was electrocuted and died as a result. This case, strictly speaking, is not applicable to the facts of the present case because the punishment provided for Qatl Bissabad under section 322, P.P.C. Is Diyat and not imprisonment.
12. Learned Assistant Advocate-General contends that the instant case would be governed by the provisions of section 308, P.P.C. Which reads as follows:-- "308. (1) Where an offender guilty of Qatl-e-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat: ' Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court: ' Provided further that, where at the time of committing Qatl-e-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
' Provided further that, where the Qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali other than the offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Tazir."
' In particular learned Assistant Advocate-General relies upon the provisions of subsection (2) of section 308, P.P.C. And contends that even if the entire arguments of the learned counsel for the petitioners are accepted as correct the petitioners would still be liable to fourteen years imprisonment as Ta'zir which would bring their case within the prohibitions contained in subsection
(1) of section 497, Cr.P.C. Which disentitles them from the grant of bail.
13. Learned counsel for the complainant submits that the provisions of section 307, P.P.C. Would be attracted to the facts and circumstances of the case which provides as follows:-- "307. Qisas for Qatl-e-Amd shall not be enforced in the following cases, namely:--
(a) when the offender dies before the enforcement of Qisas;
(b) when any Wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and
(c) when the right of Qisas devolves on the offender as a result of the death of the Wali of the victim, or on the person who has no right of Qisas against the offender."
14. The exact contention of the learned counsel for the complainant is that the whole act of forgiveness has to be voluntary and without duress and to the satisfaction of the Court. Learned counsel for the complainant contends that merely placing of affidavits of Mst. Jannatan Bibi, mother of Mst. Zarina deceased, and Pehlwan, brother of Mst. Zarina deceased, is not enough to show that the forgiveness is voluntary and without duress and coercion. In this context learned counsel for the complainant places reliance upon the case of Sanaullah and 3 others v. The State reported in 1993 SCM R 15.
' Learned counsel for the complainant finally contends that the case of Mumtaz and Machia would fall within the provisions of clause (a) of section 302, P.P.C. While the case of Ramzan petitioner, husband of Mst. Zarina deceased and father of their five minor children, would fall within the provisions of clause (c) of section 302, P.P.C. Wherein the punishment can extend to 25 years and would still remain within the prohibition contained in subsection (1) of section 497, Cr.P.C.
15. The entire emphasis of the arguments on behalf of the petitioners, the State and the complainant, has been regarding the death of Mst. Zarina deceased. Whereas, as a matter of fact, apart from Mst. Zarina deceased one other person, namely, Ata Muhammad has also been done to death in the same occurrence. According to the prosecution the said Ata Muhammad deceased was coming on a bicycle which was stopped by Ramzan petitioner and he was then fired at and killed by co-accused Allah Ditta. The legal heirs of Ata Muhammad deceased have not forgiven any one.
16. Consequently, the case of the petitioners, prima facie, falls within the c prohibition contained in subsection (1) of section 497, Cr.P.C. Because reasonable grounds to believe that the petitioners are guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years seem to exist, which clearly disentitles them from the grant of bail.
17. Resultantly, this petition is dismissed.