' Facts of the case, stated briefly, are that the complainant namely, Said Qayum son of Din Muhammad, resident of village Mahal Kopar, Tehsil and District Dargai, Malakand, had reported to the police that his grandson Salim Khan son of Nawab Gull (daughter's son) was taken by accused
(1) Shamsur Rehman (2) Gul Rehman (3) Khaista Rehman, Brothers inter se, all sons of Bola Khan and accused No,4, Faiz Muhammad son of Ghazi Maula to Shamsur Rehman's house on 16-8-1993.
There, all of them, in furtherance of their pre-planned common intention, killed the boy firing at him with lethal weapons.
2. He further alleged that in the process, Mst. Minhaja, the wife of one of the accused namely Shamsur Rehman, was grievously injured by the four accused.
3. The motive as stated by the complainant, for the commission of the offence was the "bad relations" between the deceased and his wife namely Mst. Dilshad Begum who is the sister of accused Shamsur Rehman (2) Gull Rehman and (3) Khaista Rehman (real brothers inter se).
4. Because of the said report F.I.R. No,4 was duly registered on 16-8-1993 at 13-30 hours at Police Station Qaidabad, Tehsil and District Dargai, Malakand.
5. The contents of the said F.I.R. Were then read over and explained to the complainant who, after admitting the same to be correct, signed the same in English.
6. Immediately after the registration of the case Post Commander, Fazal Karim, P.W.1 went to the house of the deceased where the dead body was lying. He prepared the injury sheet of the deceased and proceeded to the house of accused Shamsur Rehman. There he found his wife, Mst.
Minhaja, lying grievously injured. Her injury sheet was accordingly prepared. He then sent her to the hospital for immediate medical aid/treatment.
7. The Investigating Officer then eye-witness the spot, prepared the site plan, on his own since there was no eye-witness available because the sole injured P.W. Mst. Minhaja, had been sent to the hospital and was not in a position to depose before the Investigating Officer. Vide various recovery memos the Investigating Officer took into his possession three empties of .30 bore pistol, one empty of 8 mm rifle, blood-stained earth, a pair of black Chappels as well as a pair of Zanana Chappals etc. From the spot.
8. Since the legal heirs of the deceased had refused to get the autopsy done on the dead body of the deceased, therefore, the dead body was handed over them for burial. However, the Investigating Officer, had obtained a certificate in this respect from them.
9. The accused, who had allegedly absconded, immediately after the occurrence, were arrested later on. It was during the course of investigation that the father of the accused 3 in number (brothers inter se) namely, Shamsur Rehman, Gul Rehman and Khaista Rehman, handed over both the weapons of offence i,e, .30 bore pistol and 8 mm rifle to the Investigating Officer, who took the same in his possession vide recovery memo. In the presence of its marginal witnesses.
10. One of the accused namely Shamsur Rehman admitted his guilt before. The Investigating Officer, and was accordingly produced before the Assistant Political Agent so that his confessional statement could be recorded. The A.P.A., in turn, referred him to the Extra-Assistant Commissioner who then recorded his concessional statement on 25-8-1993.
11. After the completion of the investigation complete challah against the accused was submitted in the trial Court.
12. In order to prove its case the prosecution produced as many as 11 witnesses. These are:-- ' P.W.1 Fazal Karim, Commander, P.W.2 Rozi Muhammad, P.W.3 Salahuddin Khan, E.A.C., P.W.4 Umar Hassan, S.-I., P.W.5 Said Qayum, complainant, P.W.6 Mst. Dilshad Beguin, widow, P.W.7 Ghani Khan, P.W.8 Gul Faqir and P.W.9 Dr. Sher Muhammad, Medical Officer.
13. Statements of the accused were recorded under section 342, Cr.P.C. By the trial Court. All of them submitted that they were innocent and falsely charged with ulterior motive. They, however, refused to appear as their own witnesses and get their statements recorded on oath under section J-10(2), Cr.P.C. They also refused to produce any evidence in their defense.
14. After hearing the learned counsel for the parties, the trial Judge, Mr. Hayat Ali Shah, Additional Sessions Judge, Malakand at Dario, by his judgment recorded on 21-11-1995, convicted one of the accused namely Shamsur Rehman but sentenced him to pay "Diyyat" because the wife of deceased, who is the sister of the three accused-brothers, had forgiven/pardoned them. Rest of the accused were acquitted as they were given the benefit of doubt.
15. Aggrieved, Mst. Taj Mahala, the mother of the deceased, filed two petitions tinder section 435, Cr.P C. One against the acquittal of the three accused wherein she submitted that the accused were wrongly/illegally acquitted, without justification and that, therefore, the judgment announced by the trial Judge be set aside, the said accused be convicted under section 302/307/34, P.P.C. And sentenced to death.
16. The other, against the conviction of accused Shamsur Rehman wherein she submitted that since the trial Court, after having held the accused guilty of the crime charged with, had failed to appreciate the relevant law by not awarding the normal penalty of death to the convict accused, therefore, the judgment of the trial Court is not correct, needs to be modified and the punishment awarded to him (accused) be enhanced to death under the "Tazir".
17. Since both the appeals have been filed against the same judgment, therefore, these are being disposed of jointly through this single judgment.
18. Mr. Bashir Ahmad Khan, Advocate learned counsel for the petitioners, Barrister K.G. Sabir, Advocate learned counsel for the respondents and Azhar Rashid learned Assistant Advocate- General for the State present and heard. Record of the case perused carefully.
19. The only point which has been agitated before me and requires to be determined in the case in hand is as to whether or not the trial Court was bound to award punishment of imprisonment as "Tazir" in spite of the fact the accused were pardoned/forgiven by Mst. Dilshad Begum.
20. The learned counsel for the petitioner submitted that the trial Court had held the accused guilty of having committed "Qatal-e-Amad" and, therefore, although one of the legal heirs of the deceased had forgiven accused Shamsur Rehman but he was liable to be sentenced to imprisonments for life under "Tazir". In this respect he placed reliance on case Ghulam Hussain and another v. The State PLJ 1993 Cr.C. (Lah.) 60 D.B.) decided by an Honorable Division Bench of the Lahore High Court, Lahore, consisting of their Lordships Mr. Justice Sardar Muhammad Dogar and Khalil-ur-Rehman Ramday, where it was held as under:-- "(III) Qisas and Diyyat--- ----Ss. 302/34 & 307/34, P.P.C.---Murder---Offence of---Conviction for challenge to--Whether as offender can be acquitted only by paying share of Diyyat to Walis who had not compounded offence with him, if anyone of Wailes had waived his rignt of Qisas against him---Question of--- Held: Where an offender was not liable to Qisas and was thus, liable to payment of dayat he could not be let off but could be punished with imprisonment by way of Tazir."
21. The learned counsel for the petitioner thus contended that the trial Court had illegally acquitted the other accused against whom Criminal Revision No,11 of 1996 has been filed and that the trial Court had also failed to award the punishment of imprisonment under Tazir to the main culprit.
According to him, the revision petitions in the circumstances was to be accepted and all the culprits were to be sentenced to death in accordance with law.
22. Confronted with this situation, the learned counsel for accused Shamsur Rehman submitted that once the accused (Shamsur Rehman) after being held guilty for "Qatal-e-Amad" was directed to pay Diyyat amount to the heirs of the deceased, on the basis of compromise, then in that case he could not be sentenced to imprisonment under Tazir because Hadd and Tazir could not be awarded at one and the same time for an offence. He further stated that because of the forgiveness of the heirs of the victim, Shamsur Rehman accused was entitled to be acquitted. In this respect he placed reliance on case Muhammad Ashraf v. The State, decided by a Full Bench of the Lahore High Court, Lahore consisting of their Lordships Mr. Justice Sardar. Muhammad Dogar, Khalil-urRehman and Khalil-ur-Rehman Ramday and reported as PLD 1991 Lah. 347 wherein irwas held:--
(i) Criminal Procedure Code (V of 1898)--- ---S. 345 (as amended by Criminal Law (Amendment) Ordinanie (IV of 1990), S.4 and Criminal Law (Second Amendment) Ordinance (I of 1991), S.10---Crime and punishment in Islam--Qisas---Right to demand Qisas or forgiveness is given to Wali alone and none else can exercise this right including the Government or the Kazi---Court is not vested with an unguided and unlimited power to award punishment of imprisonment by o azir after grant of forgiveness (LW,: ) or receipt of by the victim or the heirs of the victim as the case may be---Prifidiples deduced from various opinions of jurists stated---High Court, however, desired that Legislature should prescribe the acts of commission an' comission or the attendin circumstances of the offences due to which the offender will render himself liable to be punished with the additional punishment by way of Tazir otherwise the very purpose of enforcing the law of Qur'an and Sunnah relating to Qatal and Jurh (hurt) will stand frustrated and the existing offences of murder and hurt will remain operative and in force for all practical purposes---Crime and punishment Oisas). . __ ., ' The question was whether power to award Tazir vests in a Kazi under Shariah in ease where the offender has been granted forgiveness or pardon by the victim or his Wali or has received Sulah-i- Badl requires to be gone into. Bani Israil Sura XVII Verse 33 reads:--
(g) Criminal Procedure Code (V of 1898)--- ----S. 345 (as amended By Criminal Law (Amendment) Ordinance (IV of 1990), S.4---Penal Code (XL. V of 1860), S.338-E, proviso---Scope and application of S.345, Cr.P.C. (as amended)---In case High Court Bench hearing the appeals comes to the conclusion that the heirs of the victim in each case have, acting voluntarily and freely, granted pardon or forgiveness () and in acknowledgment thereof have executed the compromise deed brought on record, accused in such circumstances would be entitled to acquittal---Court, however, was duty bound to comply with the requirement of and duty cast by S.338-E, proviso, P.P.C.---Wherein case of a convict no case is pending challenging his conviction and sentence in any Court he cannot avail the provision of 5.345, Cr.P.C.
' Safdar Ali and others v. The State and another PLD 1991 SC 202 ref."
23. I have gone through the record of the case carefully with the able assistance of the learned counsel for the parties and have also gone through the elaborate judgment of the Full Bench of the Lahore High Court, Lahore referred to above and I am convinced in *my mind that once accused Shamsur Rehman was forgiven and directed by the trial Court to pay Diyyat amount to the heirs of the deceased then in that case he could not be sentenced to imprisonment under Tazir because that would amount to additional punishment for the same offence.
24. This Criminal Revision, in the circumstances, has no substance and is accordingly dismissed.
25. As far as Criminal Revision No,11 of 1996 is concerned, it would be sufficient to say that the learned counsel for the petitioner has failed to convince me or to suggest, even remotely, that there is an iota of evidence in the prosecution case against the respondents-accused. It may be remarked that it was for this reason that the trial Court found them "not guilty" and had, therefore acquitted them. Valid reasons have been given by the trial Judge which are quite sufficient for his conclusion. This revision petition is also without any substance and is accordingly dismissed.
Revision .