' MIAN ALLAH NAWAZ, C.J.--- This petition, under section 439 read with section 345(5-A) of Cr.P.C. By Muhammad Jabbar, seeks to call in question the order, dated 3-9-1999 whereby learned Additional Sessions Judge, Lahore partially accepted an application embodying settlement, but declined to allow the same with regard to Habib Ullah and Aamna deceased in following terms:-- "Sequal to all above the two minors, Muhammad Jamal and Mst. Raheela may well waive right of Qisas against the petitioner, through their legal guardian, which is allowed for the compromise recorded and placed on record in the shape of affidavit and adverted so, therefore, the petitioner is acquitted of the murder of Mst. Nasreen.
' Since for the reasons recorded above and for the findings that conviction cannot be set aside/compounded or compromised for the murder of Mst. Aamna as the above two minors, are not Wali/legal representatives of Mst. Aamna, and for her murder, he is to be hanged, therefore, the petitioner through his counsel has not consented to the payment of 'Diyat' proportionate to the shares of L.Rs, of Mst. Aamna as L.Rs, of Habib Ullah, therefore, sentence of death shall have to be executed against the petitioner for the murder of Habib Ullah. There is no ambiguity that case cannot be compromised for the murder of Mst. Aamna-victim, therefore, petition in hand is partly accepted to the extent of murder of Mst. Nasreen but is dismissed to the extent of Mst. Aamna and sentence of death shall have to be executed against him, as already arranged."
2. Briefly, Mst. Nasreen, Mst. Aamna and Habib Ullah were assassinated by Muhammad Jabbar/herein petitioner on 25-8-1988. Mst. Nasreen was his wife while Mst. Aamna and Habib Ullah were his sister-in-law and father-in-law respectively. F.I.R. No,275 of 1988 was lodged at Police Station North Cantt., Lahore at the instance of one Mst. Bismillah/the real mother of Mst. Nasreen and Mst. Aanma. The petitioner was tried under section 302, P.P.C. And was sentenced to death on all the three counts on 22-12-1988. Feeling aggrieved, he preferred three Appeals Nos.1, 2 and 3 of 1988 which were dismissed. However, sentences, in all the counts, were reduced to life imprisonment. Dissatisfied, Mst. Bismillah/complainant preferred a petition for leave to appeal which was allowed by Supreme Court and the decision of the Court of trial was restored. So, the trial of petitioner finally came to an end in the Courts with the award of death penalty on three counts to him.
3. Since this petition has arisen out of act of condonation by the legal heirs of Mst. Nasreen, it seems necessary to note the legal heirs of the aforesaid deceased namely Mst. Nasreen, Mst.
Aamna Bibi and Habib Ullah:-- Legal heirs of Mst. Nasreen
(1) Muhammad Jabbar/convict (husband)
(2) Muhammad Jamaal (minor son)
(3) Mst. Raheela (minor daughter)
Legal heirs of Mst. Aanma Bibi
(1) Maqsood Nabi (husband)
(2) Imran (son)
(3) Mst. Saima (daughter)
(4) Mst. Shabnam (daughter)
(5) Mst. Saira (daughter)
(6) Mst. Sumaira (daughter)
(7) Mst. Ambreen (daughter)
(8) Mst. Reema (daughter)
Legal heirs of Habib Ullah
(1) Bismillah (widow)
(2) Mst. Shaheen (daughter)
(3) Mst. Perveen (daughter)
(4) Mst. Ghulam Fatima (sister)
(5) Mst. Raheela daughter of Muhammad Jabbar (granddaughter)
(6) Mst. Shabnam daughter of Maqsood Nabi (granddaughter)
(7) Mst. Saima daughter of Maqsood Nabi (granddaughter)
(8) Mst. Saira daughter of Maqsood Nabi (granddaughter)
(9) Mst. Sumaira daughter of Maqsood Nabi (granddaughter)
(10) Mst. Reema daughter of Maqsood Nabi (granddaughter)
(11) Imran son of Maqsood Nabi (grandson)
4-A. The legal heirs of petitioner lived with his brother Ghulam Haidar. The aforesaid person moved an application before the learned trial Court for seeking acquittal of petitioner on the premises that the legal heirs of assassinated persons had pardoned the offence committed by Muhammad Jabbar and so the aforesaid person/convict be released from jail. This application, however, was withdrawn on 7-7-1999. Thereafter, said Ghulam Haidar obtained an order from the Court of learned Guardian Judge/appointing him as the guardian-ad-litem on behalf of legal heirs of Mst.
Nasreen and moved the same application afresh. The learned Additional Sessions Judge recorded the statement of so appointed guardian-ad-litem and came to the conclusion that the convict Muhammad Jabbar was entitled to acquittal qua the murder of Mst. Nasreen. He, however, found that he was not prepared to pay "Diyat" proportionate to shares to L.Rs, of Mst. Aamna as well as Habib Ullah, therefore, declined to accept his request. This is the order which is subject-matter of challenge in this criminal revision.
4. The submissions, made by learned counsel for the petitioner may be summarized as below:-- Firstly: ' That pardon (URDU TEXT)is mercy (J) ) which is an attribute of divinity while Qisas is retributive penalty prescribed by the Holy Book. The System of Qisas, as ordained by Holy Qur'an, leans towards Afw"URDU TEXT.''According to learned counsel by this concept Islam promotes amity, peace and harmony in society. Reliance was placed on following Verses of Holy Qur'an:-- ' Surah Al-Baqarah, Verse No,178, p.70, Surah Al-Nisa, Verse No,92, p.209 and Surah Al-Airaf, Verse 156, pp.378 and 388.
' Reference was also made to ' Fiqh Abdullah Bin Masood by Dr. Rawwas (V), Kitab-ul-Janayat - Waddiyat Min Al-Hadaya, Mutala'ah Uloom-e-Islamia Urdu (translated by Ghazi Ahmad), pp.58 and 59, Imam Zufar Wa- Aarao-Hoo Al-Fiqhiyyah by Abu Al-Yaqzan Atiyyah Al Jabroori, Vol. I, pp.316 and 317.
' On the strength of the above authorities, it was contended that right of Qisas/pardon was/is heritable. The son of murderer can inherit the right of Qisas and exercise the right of Afw. Reliance was made to celeberated authorities:-- ' Badai-al-Sana'i by Al-Kassani, (translated by Khan Muhammad Chawala) Vol.VII, pp.559, 571 and 582, AI-Sharah Al-Saghir by Ahmad Bin Muhammad Bin Ahmad Al-Darir, Vol.IV, pp.358 to 368, Al- Tashri Al-Jana'i Al-Islami by Dr. Abdul Qadir Audah Shaheed (translated by Sajid-ur-Rahman Kandhalvi), Vol.II, pp.59 to 64, 170 to 173, 319 to 331, Al Fiqhul Islami wa Adillatuhu by Dr. Wahbah Al- Zuhaili, Vol.VI, pp.286 to 295.
' Secondly: That the Assassin is not entitled to inherit the estate of victim. However, this rule of Muslim Jurisprudence is only restricted to murder and does not pass to his heirs. Reliance was placed on Majmooa Qawaneen-eIslam by Dr. Tanzil-ur-Rahman (Qanun-e-Warathat (V), pp.1687, 1745 and 1947.
' Thirdly: That entitlement as Wali of Qisas is determined by the personal law of the victim; that under the provision of the Muslim Family Laws Ordinance, 1961, the legal heirs of Mst. Aamna and Habib Ullah and so the settlement of offence by them will bring an end the right of Qisas. Reliance was placed on the judgment of Federal Shariat Court, dated 5th January, 2000 passed in Shariat Petition No,29-1 of 1993.
5. The reply, as submitted by learned counsel for the complainant, may be conveniently described as below:- Firstly: Islam lays stress on inviolability of human blood and states in Verse No,92, Sura Al-Nisa of the Holy Qur'an. He referred to the Translation of Verses by A. Yousaf Ali at p.209, which is as follows:-- {{ARABIC TEXT}} "Never should a believer kill a Believer; but (If it so happens) by mistake, compensation is due: If one
(so) kills a Believer, it is ordains that he should free a believing slave, and pay compensation to the deceased's family unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (Is enough). If he belonged to a people with whom you have a people with whom you have a treaty of mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to Allah: for Allah Hath all knowledge and all wisdom." (92)
' If a man kills a Believer intentionally, his recompense is Hell, to abide therein (For ever): and the wrath And the curse of Allah are upon him, and dreadfull penalty Is prepared for him." (93) {{ARABIC TEXT}} ' Secondly: Islam prescribes the right of Qisas for act of man-slaughter. According to him, the right of Qisas of aggrieved person/legal heirs of murdered person is, in fact a guarantee for peace in the society. The right of Qisas, according to learned counsel, was also accompanied with right of Afw on the premises of compensation or without compensation. Continuing, he contended that the right of Afw of Qisas was akin to property rights, was so heritable and devolves upon the legal heirs of deceased according to personal laws of their inheritance. According to him, the legal heirs/Wali- e-Maqtool were those who were entitled to inherit "Diyat" or compensation. He placed reliance upon the meaning of expression of Wali as given in Al-Munjid, p.1397, Column No,3.{{ARABIC TEXT}} ' Similarly, according to another Arabic to Urdu Dictionary/Fatah-ul-Lughat, Wali is defined as: {{ARABIC TEXT}} ' It was so contended that Muslim Jurisprudence does not discriminate between the minor and major Wali-e-Maqtool. Whatever is prescribed is that Wali-eMaqtool have a right to condone the offence of felon. This right only enures to those persons who are entitled to inherit under the provisions of Muslim Law of Inheritance. Reference was made to Kitab Al-Fiqh-Alamazahib AlAraba'ah by Abdur Rehman Al-Jaziri, Vol.35, pp.491 to 494, 506 to 508.
' Thirdly: That Muhammad Jamal and Mst. Raheela are not the legal heirs of Mst. Aamna Bibi on a simple ground that she was survived by one husband, one son and six daughters and so according to principles of exclusion, Muhammad Jamal and Mst. Raheela were net entitled to inherit her legacy. Similarly, it was argued that Habib Ullah, on his demise, was survived by Bismillah (widow).
Mst. Shaheen (daughter), Mst. Perveen (daughter) and Mst. Ghulam Fatima (sister), Mst. Raheela (granddaughter), ' Mst. Shabnam, Mst. Saima, Mst. Saira, Mst. Sumaira and Mst. Reema (granddaughters) and Imran (grandson). According to learned counsel the grandson and granddaughters were not entitled to inherit from the legacy left by Habib Ullah. On the basis of above circumstances it was stressed that neither the legal heirs of Mst. Nasreen were entitled to inherit from the legacy of Mst. Aamna Bibi nor Habib Ullah and so they have no right whatsoever to condone on behalf of Aamna and Habib Ullah.
6. From the foregoing contentions of the parties, the following questions emerge for consideration:- -
(1) Whether the legal heirs of Mst. Nasreen are legal heirs of Mst. Aamna Bibi and Habib Ullah and so are entitled to condone/Afw the act of Muhammad Jabbar?
(2) Whether Muhammad Jabbar was disentitled to inherit from the legacy of Mst. Aamna Bibi, Habib Ullah and son his legal heirs are also not entitled to right of Afw with regard to intentional murder of Aamna Bibi and Habib Ullah?
8. Before we proceed to answer the above-noted questions, we feel it is expedient to examine the relevant Injunctions of Islam as embodied in Holy Qur'an and opinions of various doctors of Islam on the concept of Qisas and power of Wali-e-Maqtool to condone/Afw. The first Verse, in time, is 33 as contained in Sura Ban! Israeel, para. No,1.5 of the Holy Qur'an. It reads as follows:-- (English translation from the Holy Qur'an, Commentary/Translation by A. Yusuf Ali). Nor take life--- which Allah has made sacred---except For just cause. And if Any one is slain wrongfully, We have given his heir Authority (to demand Qisas or to forgive): but let him not exceed bounds in the matter of taking life: for the Is helped (by the law).
' There are two Holy Verses Nos.178 and 179 occurring in Sura Al-Baqara. These Verses read as follows:-{{ARABIC TEXT}} "O ye who believe! The law of equality Is cases of murder: The free for the free, The slave for the slave ' The woman for the woman. But if any remission Is made by the brother Of the slain, then grant Any reasonable demand. And compensate him With handsome gratitude; This is a concession And a mercy From your Lord, After this whoever Exceeds the limits Shall be in grave penalty. (178)
' In the law of Equality There is (saving of) Life To you, 0 ye men of understanding That ye may Restrain yourselves." (179)
' The fourth and last Verse is 45 occurring in Surah Al-Maidah in Para. No,5. It is as follows:-- "We ordained therein for them: Life for life, eye for eye, Nose for nose, ear for ear, Tooth for tooth, and wounds equal for equal'. But if Any one remits the retaliation By way of charity, it is An act of atonement for himself. And if any fail to judge By (the light of) what Allah Hath revealed, they are (No better than) wrong-doers."
7. Sura Bani Israeel, according to consensus, is Mekkan Sura and was revealed before Hijrah. So, it is first in line. It enjoins strict limitation on the right of wronged to take a life for life. It postulates the right of Qisas. It recognizes that a person whose, life is taken, his legal heirs have a right to demand, the taking of life of wrong-doer/murderer/assassin. This right is in consonance with interactions of instinctual human behaviours and satisfies the instincts of vengeance, retaliation and retribution.
Briefly speaking, it is a right of retribution. This right prescribes that the wrong-doer has to pay for his wrong; the sufferings, which he undergoes, restores the effect of injuries caused to wronged.
This can be a satisfaction by way of retaliation. It is a message to all those who are inclined to commit wrongs. The system of Qisas, so prescribed by Holy Scripture, keeps and ensures the balance and peace in the society and engenders the doctrine of fairness, tranquillity and harmony.
It saves the society from acts committed by wrong-doers. The first Verse also contain a divine commandment that in matter of Qisas the legal heirs of deceased/assassinated/wronged person should not cross the limits and keep the balance while taking Qisas. The second Verse/178, occurring in Surah Al-Baqarah states that Wali-e-Maqtool are vested with the power to condone/Afw. The expression used for Wali-e-Maqtool is "Akhi" which I literally means "brother". No hard and fast definition of this expression is provided in Holy Qur'an. This has been explained by Holy Prophet (may peace be upon him) with slight variation, that "Akhi" means Wali-e-Maqtool and right of Qisas is their proprietary right. Since both the parties admittedly follow Fiqah Hanfi, we find it necessary to quote from a High Authority i,e, Badai-Al-Sanai compiled by celebrated Imam Kaasani at page No,571.{{URDU TEXT}} From the foregoing examination, it is, thus, clear (1) that Islam' prscribes the right of Qisas which is retributive in nature, satisfies the element of deterent and disabling theories of criminal jurisprudence. It is beautiful amalgamation of all these theories. It is blessing for mankind and humanity. It is the right of wronged to be put in the place where wrong-doer has put him. This is, in short, the right of legal heirs of wronged. It is the right of Wali-e-Maqtool/his legal heirs; (2) that this right is compoundable. Wali-e-Maqtool have right to compound/condone/Afw on the payment of compensation/Diyat or without such compensation in lieu of pleasure of God Almighty on the day of resurrection; (3) that this right is like a property and heritable and is excusable by the legal heirs.
Resultantly, this right accrues to those legal heirs who are entitled to inherit the legacy of the deceased/wronged persons according to rules of Muslim Inheritance which are applicable to them in the matter of devolution of legal estate left by the deceased; (4) that the rule of exclusion i,e, nearer in degree excludes the more remote. The rule of priority of blood-tie and the principle of Ta'sib do apply in the case of Qisas/Diyat/Afw; (5) that the right of Afw is to be exercised in demeanour which is free from duress, coercion and manipulation. This is to be used in view seeking the pleasure of God Almighty and for no other affirmation. The legal heirs are not exceeded the reasonable limits and so the responsibility of the murderer/wrong-doer.
8. Applying these principles to the facts and circumstances of the case, it is, thus, clear that Mst.
Aamna Bibi, sister of Mst. Nasreen was survived by husband, son and six daughters. Muhammad Jamal and Mst. Raheela are not entitled to inherit from her legacy. Therefore, we are clear in mind that the aforesaid minor legal heirs of Mst. Nasreen as well as of murderer are not entitled to condone the murder of Mst. Aamna Bibi. Similarly, Habib Ullah was survived by Bismillah (widow), Mst. Shaheen and Mst. Parveen (daughters) and Ghulam Fatima (sister). The legacy left by Habib Ullah will devolve upon his widow, two daughters and sister. Muhammad Jamal and Mst. Raheela will not be entitled to inherit from the aforesaid legal heirs. Therefore, the aforesaid legal heirs through their guardian cannot condone the murder of Habib Ullah. There is yet another aspect of the case. From the record, it appears that Muhammad Jamal and Mst. Raheela/minors lived with Ghulam Haider, brother of Muhammad Jabbar. In the first instance, he moved an application for condonation of act of murder of Mst. Nasreen, Mst. Aamna and Habib Ullah. That this aspect was exposed by Bismillah, widow of Habib Ullah. Even the order was not communicated to the jail authorities and black warrant has not been issued up to this date. Thereafter, said Ghulam Haider moved an application for being appointed as guardian litem of Mst. Raheela and Muhammad Jamal. On account of aforesaid circumstances, he moved another application for condonation of murder of Mst. Nasreen, Mst. Aamna and Habib Ullah. It is true that the minors were Wali having a right to condone the offence on the payment of Diyat or without Diyat. Nevertheless he had been manipulating on behalf of legal heirs of Mst. Aamna and Habib Ullah. This definitely demonstrates the manipulation effort which is unknown to Muslim Jurisprudence. For the aforestated reason, we find that these proceedings were based on mala fides as far as Mst. Aamna and Habib Ullah are concerned. Their legal heirs did appear before us and stated that they had been subjected to gruesome cruelty and wanted compensation. For the aforestated reasons, we find that this revision petition is totally devoid of merit. The order of the learned Sessions Judge that the petitioners are not able to Diyat of Mst. Aamna and Habib Ullah is also unwarranted.
9. For the aforestated conclusions, we partly accept this revision petition and find that the legal heirs of Mst. Nasreen deceased have no right to condone the murder of Mst. Aamna/their aunt and Habib Ullah. The application filed by Ghulam Haider to the extent of aforesaid two murders is hereby rejected. Let this order be sent to the learned trial Court so as to proceed with issuance of black warrant in accordance with law.