Ijaz Ahmad alias Jaji son of Siraj Din though this criminal appeal has called in question judgment of the Session Judge, Hafizabad, dated 2-11-1999 whereby he was convicted under section 311, P.P.C .
And sentenced to 14 years' R.I as Ta'zir.
2. The occurrence which led to the murder of Maryam Iqbal took place on 21-5-1999 at 8-15 a.m. In the house of the deceased; complaint about which was made by Siraj Din father of the deceased on the same day at 10 a.m. To the S.H.O. Of Police Station City Hafizabad.
3. It was stated by the complainant Siraj Din that he was present in his house alongwith others. His son Ijaz Ahmad alias Jaji armed with a .30 bore pistol stepped inside the house and started firing at his daughter Mst. Maryam Iqbal which hit her on different parts of body falling her to the ground whereafter she was taken to Civil Hospital, Hafizabad but succumbed to her injuries before reaching the hospital and getting medical treatment.
4. Motive which led to this unfortunate incident was an alteration between the deceased and the appellant who happens to be brother and sister.
5. On 26-10-1999 when the appellant was summoned he made a statement that the heirs of the deceased have waived the right of Qisas and have granted pardon to him, the case was adjourned for production of the heirs/Walis of the deceased. Consequently on 2-11-1999 Siraj Din, father of the deceased made the following statement:-- "Maryam lqbal deceased was my real daughter who at the time of occurrence was unmarried. Ejaz Ahmad accused present in the Court also happens to be may real son. I have forgiven him in the name of Almighty Allah without any Badl-i-Sulh. I waive my right of Qisas and have no objection if the accused is acquitted."
A similar statement was made by Mst. Irshad Begum mother of the deceased, who also happened to be the mother of the appellant. Appellant was also examined on the same day by the trial Judge who stated as under:-- "Mst. Maryam Iqbal deceased was may real sister. On 21-5-1999 at 8-15 a.m. I committed her murder by inflicting fire-arm injuries on the different parts of her body with my pistol since she had not pressed my clothes with electric iron. The pistol with which I committed the murder of my sister was licensed."
On the same day the learned trial Judge proceeded to convict the appellant under section 311, P.P.C. And sentenced him to 14 years' R.I. By way of Ta' zir.
6. The factor which influenced the trial Judge in convicting the appellant under section 311, P.P.C. Is reproduced as under:-- "No doubt that under section 309, P.P.C. Any sane Wali may at any time and without any compensation, can waive his right of Qisas and the Court would have no objection in case of compounding the offence but this sad incident took place on a very petty pretext and the accused who is labourer, out of his vanity, committed murder of an innocent lady who was his real sister, without any fault of her. He did not fire one shot rather successive shots on the person of the deceased which exposes the brutal act of the accused. He is a labourer but was having a licensed pistol which depicts his criminal inclination and in view of the same, his case is covered by section 311, P.P.C. And in my conscientious and considerate opinion, he should be punished keeping in view the principle of Fisad-fil-Arz as it would go to meet the ends of justice and to keep guard upon humanity and human life which was considered to be very cheap by the accused."
7. Learned counsel for the appellant has vehemently stated that the trial Judge had no option left in the instant case but to pass an order of acquittal under section 345(6) of the Code of Criminal Procedure and the conviction under section 311, P.P.C. Has led to a serious miscarriage of justice as the provision enunciated in section 311, P.P.C. Has been grossly misinterpreted. Conversely learned A.A.-G. Maintained that the legislature had conferred vast powers on Courts to convict a person under section 311, F.P.C. If there was inculpative evidence, even if Walis had compounded or waived their right of Qisas.
8. Appellant on 2-11-1999 had admitted the murder of his sister by him. It could, therefore, be considered as voluntary and true confession of the commission of the offence bringing his case within the ambit of section 304, P.P.C. Which requires proof of Qatl-i-Amd liable to Qisas. Section 309, P.P.C. Provides for waiver-Afw of Qisas in Qaqtl-i-Amd and section 310, P.P.C. Speaks of compounding of Qisas (Sulh) in Qatl-i-Amd and correspondingly subsection (2) of section 345 of the Code of Criminal Procedure acts in the heirs of the victim a right to compound the Qatl-i-Amd with permission of the Court before which the prosecution for such evidence is pending. Under subsection (6) of section 345 (ibid) the composition of an offence under this section shall have the effect of acquittal of the accused with whom the offence has been compounded.
9. Section 311, P.P.C. Provides punishment by way of Ta'zir even after waiver or compounding of right of Qisas in Qatl-i-Amd. For facility of reference section 311, P.P.C. Is reproduced below:- "Notwithstanding anything contained in section 309 or section 310 where all the Walis do not waive or compound the right of Qisas or keeping in view the principle of Fisad-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 14 years as Ta'zir.
Explanation--- For the purpose of this section, the expression Fisad-filArz 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."
10. Plain reading of section 311, P.P.C. And its interpretation leads to the conclusion that said provision of law only applies in cases of Qatl-i-Amd liable to Qisas, after its wavier or composition under section 309 or 310, P.P.C. Respectively, The mechanism provided under section 311, P.P.C.
Manifestly suggests that even after waiver or composition by the Walis/heirs of the deceased the Court still is empowered to convict the accused and punish him to imprisonment which can extend to 14 years by way of Ta'zir if all the Walis have not waived or compounded the right of Qisas or the accused comes within the ambit of term "Fisad-fil-Arz". In the explanation appended to section 311, P.P.C. "Fisad-fil-Arz" has been defined to 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. The plain interpretation of the explanation makes it abundantly clear that either the accused is to be a previous convict or a habitual or professional criminal and the brutal manner in which the offence is committed.
11. Wisdom of the law giver in enacting section 311, P.P.C. Is very clear. It intends to inflict punishment on those who, notwithstanding the composition or waiver by Walis have to be visited with some penalty, not only for their propensity towards criminal acts but its mode of barbaric execution. The inclusion of the term "Fisad-fil-Arz" has significant meaning and it is only those persons who fall within its ambit who can be convicted and punished under this section. I am not inclined to lean towards the interpretation placed by the learned Additional Advocate-General for the reason that if the Courts are invested with powers that in each and every case, irrespective of the composition and waiver by the Walis they can punish the accused then sections 309 and 310, P.P.C. Would become redundant and superfluous in its application. Redundancy is something abhorred by the Legislature.
12. There is no evidence on record either of previous conviction of the appellant or his being habitual or professional criminal. No doubt the manner in which he killed his sister Mst. Maryam Iqbal was brutal and atrocious but the brutal manner of killing has to be read in conjunction with his being a habitual or professional criminal. Once again it is reiterated that no evidence is on the file to show the accused to be habitual or profession criminal. Therefore, he cannot be termed as Fisad-fil-Arz by any stretch of imagination. The reasoning arrived at by the trial Judge may be appreciable and laudable from a moral angle but the view taken by him is not backed by law.
13. Conviction of the appellant under section 311, P.P.C. And passing sentence of 14 years' R.I. By way of Tazir is not maintainable. I, therefore, accept the appeal, set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 2-11-1999. Appellant, therefore, stands acquitted under section 345(6), Cr.P.C. And if not required in any other case, shall be released from jail.