' ASIF SAEED KHAN KHOSA, J.--Jahangir appellant was convicted by the learned Sessions Judge, Pakpattan Sharif vide judgment, dated 1-11-1993 under section 311, P.P.C. By way of Ta'zir for the murder of one Muhammad Riaz and was sentenced to pay Rs,85,305.25 as share of Diyat to the deceased's daughter Mst. Razia Bibi, Rs:28,435 as share of Diyat to the deceased's mother Mst.
Asma and Rs,35,545.75 as share of Diyat to the deceased's father Falak Sher. It was ordered that the amount of Diyat was to be deposited in the Court within three months of the judgment or in default of payment thereof the appellant was to suffer simple imprisonment till the amount of Diyat was paid in full. However, through the same judgment the learned trial Court had acquitted the appellant's co-accused Muhammad Saeed, Muhammad Amir and Muhammad Yar. Jahangir appellant has challenged his conviction and sentence before this Court through Criminal Appeal No,305 of 1993. Muhammad lqbal complainant and Haji Falak Sher, father of Muhammad Riaz deceased and an eye-witness, have jointly filed Criminal Revision No,2 of 1994 seeking retrial of the case against all the four accused persons. We have heard Jahangir convict's appeal along with the complainant's revision petition and we propose to decide both these matters together through the present consolidated judgment.
2. The allegation against Jahangir appellant was that at about 10-00 a.m. On 22-1-1993 he had committed the murder of Muhammad Riaz in a field in Chak Mir Khan Mahmooka, Dakhli Bohr situated within the area of Police Station Sadar, Pakpattan Sharif. The allegation against the other three accused persons was that they had instigated Jahngir appellant in that regard. After completing the investigation the local police had challaned all the four accused persons and the learned trial Court had framed a charge with two heads under sections 302 and 302/109, P.P.C., against them to which they pleaded not guilty and claimed a trial. At the conclusion of the trial the learned trial Court had convicted and sentenced Jahangir appellant as noticed and detailed above but all his three co-accused were acquitted of the charge against them.
3. In the peculiar circumstances of this case we need not go into the details of the prosecution's case against the appellant and his co-accused. To us what is important in this respect is that after an exhaustive analysis of the prosecution's evidence the learned trial Court had concluded that the eye-witnesses of the occurrence produced by the prosecution were closely related to the deceased; they had a longstanding enmity with the accused party; their claim of witnessing the occurrence was unbelievable; their statements were contradictory to each other; the medical evidence also contradicted them; the motive set up by the prosecution remained unproved; and the alleged recovery of gun from Jahangir appellant was not satisfactorily proved. It was, thus, concluded by the learned trial Court that: "In the instant case the evidence regarding motive, recovery of gun and eye-witness account is not of the quality on the basis of which discretion could be exercised for awarding any punishment of Tazir against Jahangir accused for 'Qatl-iAmd' of Riaz deceased."
(Paragraph No,46 of the impugned judgment).
' It was also concluded by the learned trial Court that:-- "For the reason given above Jahangir accused is acquitted of the charge under section 302, P.P.C.
Subject to payment of the amounts of Diyat to Razia Bibi, Mst. Asma and Falaksher as discussed above."
(Paragraph No,51 of the impugned judgment).
4. We have been able to decipher from the impugned judgment rendered by the learned trial Court, and we may observe that such deciphering has not been without some difficulty, that although Jahangir appellant was acquitted from the charge under section 302, P.P.C. Yet he was convicted under section 311, P.P.C. On account of the fact that there had been a partial compromise between the parties inasmuch as some of the heirs of the deceased had waived their right of Qisas against the appellant but others had not. On the basis of that partial compromise the learned trial Court had jumped to the conclusion that the case against the appellant attracted the provisions of section 311, P.P.C. Which carried a sentence of Diyat and an optional and discretionary additional sentence of imprisonment up to 14 years as Ta'zir. Thus, after giving reasons for not passing a discretionary and optional sentence of imprisonment, the learned trial Court passed a sentence of payment of Diyat alone against Jahangir appellant.
5. After giving our anxious considerations to this aspect of the matter we are of the considered view that the approach of the learned trial Court in that respect was entirely illegal and the same was based upon a misconception of the Qisas and Diyat law introduced in the Pakistan Penal Code. Our understanding of this law is that section 311, P.P.C. Is attracted only to that case where an accused person is first found guilty of Qatl-iAmd liable to Qisas (for which proof required under section 304, P.P.C. Has been made available and believed by the trial Court) creating and vesting a right of Qisas in the Wali (heirs) of the victim and thereafter, either a partial compromise is arrived at between the convict and some of the heirs of the victim on the basis of waiver or compounding of their right of Qisis by the compromising heirs or a complete compromise is arrived at between the convict and all the heirs of the victim on the basis of waiver or compounding of their right of Qisas by them but the Court, keeping in view the principle of Fasad-fil-Arz, is not ready to let the convict go scot free. This was surely not the position in the present case. In the case m hand the learned trial Court had in so many words discarded the entire prosecution evidence and had found the same to be not worthy of reliance for recording any conviction, not to talk of conviction for the purposes of liability to Qisas. Thus, in the absence of any conviction of the appellant being possible the question of effect of the partial compromise between the appellant and some of the heirs of the deceased had become meaningless rendering the provisions of section 311, P.P.C. Incapable of being attracted to the case in hand. We may add that if the provisions of section 311, P.P.C. Were to be attracted to every case of a partial compromise even in the absence of sufficient evidence warranting conviction in the first place then a trial Court may resort to recording a conviction of an accused person under section 311, P.P.C. The moment a partial compromise is brought to its notice irrespective of the fact whether the prosecution has so far led any evidence or not pointing towards the guilt of the accused person. Such a premature conviction or a conviction in the absence of convincing evidence against an accused person cannot possibly he intended by section 311, P.P.C.
That result would offend against both the Islamic as well as the Anglo-Saxon criminal jurisprudence. Such an absurdity cannot he imputed to the Legislature.
6. After hearing the learned counsel for the parties and going through the record of this case we have felt satisfied with the finding of the learned trial Court that, on account of the various infirmities noticed in the prosecution's evidence, the prosecution had failed to prove its case against Jahangir appellant beyond reasonable doubt. Thus, Jahangir appellant had earned a right of acquittal on the merits of the case and the same, as discussed above, could not be denied to him on the basis of a partial compromise in this case. Criminal Appeal No,305 of 1993 filed by him is, therefore, accepted and he is acquitted of the charge against him. Jahangir appellant had been admitted to bail by this Court on 1-2-1994 on the condition of furnishing bail bond and a security bond in respect of the Diyat amount. His bail bond and sureties as well as the security bond shall stand discharged.
7. As regards the revision petition filed against the acquitted accused in this case we have found the same to be a non-starter. The learned trial Court had advanced elaborate reasons for recording their acquittal and we have found the conclusions arrived at by the learned trial Court in that respect to be such that any reasonable Court could have come to the same upon a fair assessm ent of the evidence on record. The learned counsel for the complainant has failed to point out any misreading or non-reading of the relevant evidence by the learned trial Court in that regard. Thus, no good ground has been found by us for interference in the exercise of jurisdiction and discretion by the learned trial Court in the matter of acquittal of Muhammad Saeed, Muhammad Amir and Muhammad Yar accused in this case or for the purpose of remanding the case for a retrial as prayed for. Therefore, Criminal Revision No,2 of 1994 is hereby dismissed.