' MUHAMMAD AZAM KHAN, J.---The appellant Mahar Gul son of Mahram Gul, resident of Nawekillai, Mingora, Swat, was tried alongwith Mst. Jamila co-accused by the learned Sessions Judge/Zilla Qazi, Swat, for having committed the murder of Fazle Rabi, husband of the co-accused namely, Mst. Jamila upon her prompting and abetment, on 20-7-1992 inside the house of the deceased at 12-30 hour.
' Vide order, dated 6-7-1995, the learned Trial Court convicted Mahar Gul having been guilty for 'Qisas' and sentenced hith to pay Diyat of two lac Fifteen thousand (Rs,2,15,000) failing which he was to remain in the judicial lock-up for indefinite period. The impugned order reflects that upon the same evidence adduced by the prosecution the Trial Court was obliged to acquit the co- accused Mst. Jamila and later on considered her as a legal heir of the deceased, and natural guardian of Mst. Saeeda, minor daughter, pardoned the convict. Mst. Zeba sister of the deceased, and wife of the appellant, refused to accept the Diyat amount though she was not the legal heir.
The complainant in this case is Fazli Elahi brother of the deceased, and the star witness to the occurrence is Fazli Ghaffar his son.
2. In the instant case the convict has challenged his conviction and sentence through Appeal No,288 of 1995. The complainant Fazli Elahi has brought an appeal, Criminal Appeal No,275 of 1995, against the acquittal of Mst. Jamila co-accused. Also before us in Criminal Revision No,95 of 1995, brought by. Fazli Elahi complainant, Fazli Ghaffar and Fazli Wahab sons of the deceased and Mst.
Hussain Pari mother of the deceased for the enhancement of the sentence and converting the punishment of respondent No,1 (Mahar Gul) from Diyat to punishment of Qisas as death. Through this common judgment we propose to dispose of all the abovementioned matters.
3. The facts of the case briefly stated are that the Additional S.H.O., Police Station Mingora, who was on patrol duty of the Illaqa on 20-7-1992 received information about the occurrence. He rushed to the spot which is the house of the deceased where Fazal Elahi complainant brother of the deceased made a report Exh.P.W.1/1 before him to the effect that on the eventful day at 12-30 hours he was informed by P.W. Bakht Akbar and his nephew Fazli Ghaffar that the deceased Fazle Rabi was killed by Mahar Gul on the direction of Mst. Jamila co-accused, wife of the deceased.
' Both the accused were examined under section 342, Cr.P.C., wherein they professed their innocence. It is on record that Mst. Zeba sister of the deceased is the wife of the appellant.
4. The reasons given by the Trial Court while passing the impugned order have not convinced us.
The conviction of Mahar Gul appellant is solely based on the testimony of Fazle Ghaffar who was held to be present at the time of occurrence inside the house, yet the Court ignored his veracity in respect of the charge of 'Qatl-e-Amd' brought by him against his mother Mst. Jamila, the co- accused. Besides, the Trial Court has ignored the fact that Fazle Rabi deceased had two sons namely, Fazle Ghaffar and Fazle Wahab yet he accepted Mst. Jamila and Mst. Zeba as legal heirs of the deceased and also Mst. Saadia a minor daughter who waived their rights of Qisas in favour of the appellant. The Trial Court, therefore, could not convert the punishment of Qisas into Diyat without the consent of all the legal heirs of the deceased. This conversion of punishment into payment of A Diyat is invalid, illegal and without lawful authority. According to the Islamic laws, where punishment of Qisas is not punishable according to the injunction of Islam then offender can be awarded punishment as 'Tazir' and that too can be awarded by a Court when waiver or compounding of right of 'Qisas' is available on record. The learned Trial Court has failed to appreciate the ingredients of sections 309 and 310, P.P.C., which pertain to the waiver or compounding of the right of Qisas in 'Qatl-e-Amd' liable to 'Tazir' under section 302(b), P.P.0 . We, therefore, hesitate to decide the case in the present circumstances and are inclined to remand back the case to the Trial Court for trial de novo keeping in view the merits of the case. The appeal of the appellant Mahar Gul 'fails and Criminal Appeal No,275 of 1995, against Mst. Jamila is accepted. She is taken into custody and allowed transitory bail provided she furnishes bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court.
' Parties are directed to be produced/appear before the Trial Court on 30-9-1999. In case Mst.
Jamila is not released on bail then she be also produced before the Trial Court on the said date.
Criminal Revision No,95 of 1995 shall follow the events.
' The office is directed to send immediately the record of the case to the Trial Court.