' SH. UAZ NISAR, J.---Khalid Nawaz appellant along with his father Noor Ahmed accused (since acquitted) was tried for committing the murder of Rehmat Ali deceased, by the learned Additional Sessions Judge, Faisalabad. The learned trial Court vide its judgment, dated 5-6-1993 convicted Khalid Nawaz appellant under section 302(a), P.P.C. And awarded him the sentence of death plus a fine of Rs,10,000, and in default thereof to undergo one year's S.I. Under section 544-A, Cr.P.C.
2. The learned Division Bench of the Lahore High Court, Lahore, while disposing of the Murder Reference and the appeal of Khalid Nawaz appellant maintained his conviction and sentence awarded by the trial Court. The convict-appellant filed Petition for Leave to Appeal before this Court against the judgment of the High Court, dated 11-11-1996. Leave to appeal was granted by ' this Court, vide order dated 4-2-1998, to consider the points raised by the learned counsel for the appellant, relevant portion whereof is reproduced hereunder: - "Mst. Taleh Bibi is mother of Rehmat Ali deceased and Noor Ahmad acquitted accused. Khalid Nawaz convict is her grandson. The statement forgiving the right of Qisas was not at all noticed by the learned Judges of the High Court while confirming the death sentence of the convict petitioner.
Mst. Taleh Bibi alongwith others i.e, wife and issues of Rehmat Ali deceased is legal heir of Rehmat Ali deceased. It is argued that punishment of death as Qisas cannot be enforced in view of the forgiveness granted by one heir of the victim in view of the provisions contained under sections 305, 307 and 309 of P.P.C. And, as such, learned Courts below have erred in law in awarding death sentence.
' The points raised require consideration. Leave to appeal is, therefore, granted."
3. The prosecution case, in brief, as reflected in the F.I.R. Is that on 30-9-1991 at about 7-15 a.m.
Liaqat Ali complainant P.W. I alongwith his father Rehmat Ali was present in their field to take their turn of water. The complainant was returning after closing the Nakka when he saw Khalid Nawaz armed with a .12 bore gun and Noor Ahmad, who is also the uncle of the complainant, armed with a hatchet, present near their Dera. On seeing the complainant, Noor Ahmad raised a Lalkara and asked Khalid Nawaz appellant to fire at him so that every day's dispute should come to an end, whereupon Khalid Nawaz appellant fired at him. On hearing the fire report and the alarm raised by the complainant, Masood Ahmad and Akbar Ali, P.Ws., who were working in their nearby fields rushed to the spot. On seeing them, Noor Ahmad accused (since acquitted) exhorted Khalid Nawaz appellant to open fire whereupon he fired from his .12 bore gun hitting the bladder of Rehmat Ali deceased, as a result of which he fell dead .
4. The motive, as disclosed in the F.I.R., was that there was a dispute between the parties on the division of water and in this connection both the parties had quarrelled many a times, but the matter was used to be patched up. However, Khalid Nawaz appellant nourished a grudge. Liaqat Ali, Akbar Ali and Masood Ahmad P.Ws. Witnessed the incident.
5. It is contended that the appellant could not have been convicted under section 302(a), P.P.C.
Because Mst. Taleh Bibi, mother of Rehmat Ali deceased, had pardoned him and had also waived her right of Qisas and Diyat. She had made a statement to this effect before the learned trial Court on 28-4-1993, but it escaped the notice of the learned trial Court as well as the learned High Court.
Section 309(1), P.P.C. Permits any adult Wali of the deceased to waive the right of Qisas without any compensation, and if so done by any Wali, the offence would be punishable under section 311, P.P.C.
6. We, accordingly, partly accept the appeal and alter the sentence of death of the appellant to imprisonment for 14 years' R.I. With benefit of section 382-B, Cr.P.C. In addition to this, the appellant shall pay the Diyat amount to the mother of the deceased.