1. MUNAWAR AHMAD MIRZA, C.J.--This petition calls into question order dated 25th June, 1996 passed by iearned Additional Sessions Judge, Pishin.
2. Relevant facts briefly mentioned are that, petitioner Niaz Muhammad was apprehended in pursuance of F.I.R. No,143/1995, lodged with Police Station, Pishin on 28th December, 1995 under section 302, P.P.C. After completion of investigation appellant was sent up to face trial for causing murder of Nawab Khan son of Sher Ali resident, Killi Sangar, Pishin. During pendency of proceedings Sher Ali father of deceased Nawab Khan relinquished right of Qisas as regards petitioner Niaz Muhammad and expressed his intentions for not pursuing proceedings against him alone. S.H.O., Police Station, Pishin on proper verification concerning heirs of deceased submitted his report on 13-4-1996, specifying that he left behind (i) father Sher Ali, (ii) one brother Nazar Jan and (iii) two step-sisters who were married. Report further indicated that Nawab Khan was unmarried. It may be mentioned that apart from petitioner co-accused Faizullah, Hameedullah and Muhammad Anwar are also facing trial concerning murder of Nawab Khan. Learned Additional Sessions Judge, Pishin examining various aspects pertaining to compromise executed between petitioner Niaz Muhammad and Sher Ali father of deceased Nawab Khan passed an order on 25th June, 1996, operative portion whereof is reproduced hereunder:--- "I heard arguments and perused the record. The circumstances in tribal area just like Pishin, the whole issue cannot be left with the father. Brothers and sisters are also necessary to appear in person or confirm the compromise through commission. Besides it is also not mentioned as to which school of thought the deceased belongs. Whether in their school of thought only father is competent to compromise with the accused or otherwise. The case-law produced by the learned counsel for the accused is not applicable to the circumstances of present case. Therefore, cannot be relied upon.
3. In view of the above the compromise is accepted to the extent of the father of the deceased. And case will proceed under Tazir under section 311, P.P.C. (as amended)."
4. Perusal of above order clearly suggests that learned trial Judge apart from father of deceased Sher Ali felt that presence of his brother and sisters for giving complete effect to compromise, was necessary. The concluding portion of order further indicates that after accepting compromise to the extent of Sher Ali father of deceased; proceedings against him were drawn under Tazir as contemplated by section 311, P.P.C. Amended uptodate. Above-referred order has been assailed through present petition. Following questions arose for determination in this petition:
(1) Whether father under Muslim Personal Law was competent to compound the offence with petitioner by excluding brother and sisters?
(2) Whether factum of compounding an offence and relinquishment regarding right of Qisas; would outright constitute acquittal and direction for drawing proceedings against petitioner under Tazir within the meaning of section 311, P.P.C. Are devoid of lawful authority?
(3) Whether proceedings under section 311, P.P.C. Drawn against the person involved in the commission of offence covered by section 311, P.P.C. Is compoundable by the heirs of deceased?
5. Keeping in view importance and general applicability of above propositions of law M/s. Muhammad Aslam Chishti and Raja Muhammad Afsar, Advocates were asked to assist the Court.
6. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner emphatically urged that father alone could compound the offence and waive right of Qisas by excluding brother and sisters. He relied upon observations in case Basheer Ahmed v. The State PLD 1995 Karachi 5. Learned counsel canvassed that trial Court on accepting the compromise was bound to direct acquittal of petitioner Niaz Muhammad, within the purview of section 345(6), Cr.P.C. Was further urged that trial Court disregarded basic requirements of law by directing initiation of proceedings against the accused under section 311, P.P.C., despite acceptance of compromise.
7. Mr. Muhammad Aslam Chishti, Advocate pointing out table of sharers and residuaries regarding inheritance under Sunni Law stressed that when deceased has no child or descendants; father in the capacity of residuary shall exclude brothers and sisters. Therefore, according to him compromise by father was proper. However, learned counsel emphatically argued that under circumstances particularly mentioned in section 311, P.P.C. Despite compounding of offence or waiver of Qisas, the Court has complete discretion for proceeding against the accused.
8. Raja Muhammad Afsar, Advocate agreeing with reasoning advanced by Mr. Chishti, Advocate expressed that normally when offence is compounded and legal heirs of deceased relinquish right of Qisas, Court should lean towards acquittal of accused and proceedings under section 311, P.P.C.
9. Should be drawn only in exceptional cases.
10. Mr. Mehmood Raza, Advocate appearing for the State, however, opposed the petitioner and supported order of the trial Court.
11. We have given anxious thought to all the aspects, and proceed to resolve the proposition in following terms.
12. Firstly considering status of father for purposes of compounding the offence where his issueless son was murdered, it would be necessary to examine table of shares and residuaries under Muhammedan Law:
(1) (2) (3) (4)
13. Sharers NormalShare Conditions under Which the normal(B) conditions under which shares Nos.1,2,7,8,11 and 12 succeed asOf one of two or more Share is inheritedresiduaries. collectively (b)
14. 1.Father 1/6 When there is a Child or child Of son h.l.sWhen there is no child Or child or son h.l.s. the father inherits as a residuary.
(b) Table of residuraies in order of succession: I. DESCENDANTS:
1. SON.--Daughter takes as a residuary with the son, the son taking a double portion.
2. SON'S SON h.l.s.--The nearer in degree excluding the more remote. Two or more son's sons inherit in equal shares. Son's daughter h.l.s. Takes as a residuary with an equal son's son. If there be no equal son's son, but there is a lower son's son, she takes as a residuary with him, provided she cannot inherit as a sharer. In either case, each son's son h.l.s. Takes double the share of each son's daughter h.l.s. Note.-........
15. II.-ASCENDANTS:
3. FATHER.
4. TRUE GRANDFATHER h.l.s.--The nearer in degree excluding the more remote."
16. Besides, while dealing with question of inheritance text from AlSirajiyyah which appears in "The Muslim Law of Inheritance" compiled by AlHaj Muhammad Ullah from the original Arabic authorities containing Abrabic and English translation, manifests status of father in Chapter 1, para 6, page 115.
17. Relevant portion is reproduced below: "For the father there are three cases: (i) He takes a mere share of one-sixth, alongwith the son or son's son howlowsoever; (ii) he is a sharer and a residuary both when he exists with the daughter or son's daughter howlowsoever; (iii) he becomes a pure residuary in case there is no child or son's child, howlowsoever."
18. Thus deceased being childless his father Sher Ali in the capacity of residuary would exclude brother and sisters. Therefore, we unhesitatingly conclude that in the instant case father alone as residuary is competent to compound the offence or relinquish right of Qisas relating to murder of his son.
19. Next question requiring attention would be whether Court has any discretion after acceptance of compromise to draw proceedings against culprit despite compounding of offence by the legal heirs. No doubt when an offence covered by section 345(2) is compounded, by person specified in column 3 of the table, permission of Court is mandatory for entertaining the compromise. This clearly presupposes that Court has discretion to refuse the permission for . Compromise. However, such discretion must always be cautiously and judiciously exercised. Evidently section 345(6), Cr.P.C., suggests that normally acceptance of compromise concerning offence specified in section 345(2) with the leave of Court shall have consequences of acquittal. Thus suffice it to observe that on effecting compromise parties cannot claim its acceptance as of right. However, in the amended law sections 309, 310 and 311, P.P.C. Have been introduced, further limitation expanding discretion of the Court. Therefore, notwithstanding compounding of Tazir and waiver of Qisas, Court enjoins discretion to punish the accused persons; when he is previous convict, habitual or professional criminal or offence has been committed with brutality. We would like to add that section 311, P.P.C.
20. Does not find mention in the table contained under section 345(2), Cr.P.C., therefore same certainly would not be compoundable by the heir(s) of deceased.
21. After the above discussion we proceed to examine validity of impugned order. Obviously father of deceased Nawab Khan alone was competent to compound the offence, therefore, direction for procuring confirmation from brother and sisters issued by learned -trial Court through impugned order is totally devoid of lawful authority. It seems that trial Court due to misconception of law has made vague observations in that behalf. However, in this case prosecution evidence suggests that neck of the deceased was slit-open. Therefore, in the light of above observations and requirements contained in section 311, P.P.C., trial Judge should apply mind judiciously and specify cogent reasons if it intends to proceed against petitioner under said law.
22. The impugned order is consequently set aside and to trial Court for re-examining the compromise and passing order afresh in the light of above observations.
23. While parting we would like to record our gratitude for valuable assistance rendered by M/s Muhammad Aslam Chishti and Raja Muhammad Afsar, Advocates.