' This judgment will dispose of Criminal Appeal No, 510 of 1998 filed by Tariq Mehmood, appellant, who was convicted under section 302(b), P.P.C. And sentenced under section 311, P.P.C. To undergo 14 years R.I. As Tazir and also held the appellant not entitled to claim anything from the estate of Ghulam Muhammad (deceased) by the learned Sessions Judge, Mandi Bahauddin vide judgment, dated 30-4-1998. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
3. Occurrence in this case had taken place at 8 a.m. On 16-5-1995 within the revenue estate of Kala Shadian which is at a distance of four miles from Police Station Qadirabad, District Mandi Bahauddin while the matter was reported by Ghulam Sarwar at 11 a.m. On the same day and the formal F.I.R. Exh.P.C. Was recorded by Ghulam Ahmad, S.-I./S.H.O.
3. Briefly stated the facts of the case were that at about 8 a.m. On 16-5-1995, Ghulam Sarwar, complainant along with Nazra and Aslam were present in the Baithak of Ghulam Muhammad when a clash of hot words took place between him and his son Tariq Mehmood whereupon Tariq Mehmood went out of the Baithak and brought Toka which was lying in the courtyard. Tariq Mehmood immediately came back and gave a Toka blow on the neck of Ghulam Muhammad who was lying on the cot. The complainant and the P. Ws. Raised alarm but Tariq Mehmood while raising Toka and threatening them of dire consequences ran away from the spot. When the complainant namely Ghulam Sarwar, Nazra and Aslam attended Ghulam Muhammad, he had succumbed to the injury at the spot.
' Motive behind the occurrence was that Tariq Mehmood and his sister were married with son and daughter of the complainant in watta saw which was not liked by Tariq Mehmood and due to this grudge Tariq Mehmood had given Toka blow to his father and killed him.
4. After registration of the formal F.I.R. Exh.P.C. Ghulam Ahmad, S.-I./ S.H.O. (P.W.10) proceeded to the place of occurrence, prepared the injury statement Exh.P.G., inquest report Exh.P.H., took into possession blood stains with a swab vide recovery memo. Ex and on 24L5-1995 arrested Tariq Mehmood, appellant in this case, who while in Police custody led to the recovery of Toka P.4 which was taken into possession vide memo. Exh. P.E. After completion of the investigation, accused- appellant was challenged to face the trial.
5. Prosecution in order to prove its case produced 10 witnesses in all, thereafter the learned District Attorney tendered in evidence Exh.P.L., report of the Chemical Examiner, Exh.P.L.1, report of the Serologist, again a report of the Chemical Examiner Exh.P.M. And that of the Serologist Exh.P.M.1 and closed the prosecution case. Then statement of the appellant was recorded under section 342, Cr.P.C. In which he claimed false implication. After conclusion of the trial, appellant was convicted and sentenced as stated above.
6. After having read before me the entire prosecution evidence, statement of the appellant and other material available on record learned counsel for the appellant submits that complainant Ghulam Sarwar (real uncle of the appellant) and Mst. Amina (real sister of the appellant) had entered into a compromise and compounded the offence so no conviction under section 302(b), P.P.C. Could have been awarded. Further submits that when the offence was compounded and no conviction under section 311, P.P.C. Could be awarded, then the matter of debarring the appellant from inheriting the property of his father who was deceased in this case would come to an end and the order passed by the learned trial Court debarring the appellant from the inheritance of deceased is illegal. In support of his submission, learned counsel has relied on {{URDU TEXT}} written by Abdul Qadir Uda Shaheed a renowned Jurist of Egypt. According to the said Jurist when an accused person cannot be convicted under the Qisas then he cannot be debarred from inheriting the property of his father who was killed by the accused person.
7. On the other hand, Mr. Khalid Naveed Dar, Advocate who was asked to appear in this case as amicus curie submits that the deceased had got 24 acres of land along with one shop which was his personal property, he had divorced mother of the appellant 10 years ago before the occurrence, present appellant has got one sister, namely, Mst. Amina, she was married to son of the complainant, Ghulam Sarwar, present appellant is nephew of the complainant, that the complainant and Mst. Amina had compounded the offence during the course of trial, in this regard statements of Amina and Ghulam Sarwar were recorded by the, trial Court on 27-4-1998 while application in this regard by the appellant for compromise was submitted on 21-4-1998, statement of the appellant was recorded under section 342, Cr.P.C. On 28-3-1998 and that when both complainant Ghulam Sarwar and Mst. Amina, legal heirs of the deceased, have entered into a compromise and compounded the offence, then no conviction under section 311, P.P.C. Could be awarded as no question of Qisas arises in this case. Mr. Dar further submits that for convicting an accused under Qisas, section 304, P.P.C. Is relevant which states that there should be two conditions to convict an accused person under qisas and those are that the accused will make a confessional statement before a Court of competent jurisdiction who conducts the trial or two adult male witnesses who also fulfill the requirement of Tazkiya-al-Shahood as stated under Article 17 of the Qanun-e-Shahadat Order, 1984 make statement against the accused person. He also submits that if a person is to be convicted under the Qisas, conviction can only be under section 302(a) and not under section 302(b), P.P.C. Adds that Ghulam Sarwar and Mst. Amina in fact had not waived or compound the right of qisas rathar they have compounded the offence. Learned counsel further adds that if case of the appellant is not covered by section 309/310, P.P.C. Then no conviction under section 311, P.P.C. Could be awarded, that trial Court has failed to appreciate ingredient of sections 309 and 310 P.P.C.
8. As to the controversy whether the appellant who had killed his father can be debarred from inheriting property of his father, Mr. Khalid Naveed Dar, Advocate submits that the relevant sections in this context are 317 and 338-F of the P.P.C. And in view of statutory provisions person committing qatl debarred from succession. He has also referred to Hidayah from {{URDU TEXT}} According to which Hazrat Abu Hurera (r.a.) has stated the saying of Muhammad (s.a.w.) that no murderer (of his father) can inherit the property. Imam Abu Hanifa (r.a.) is also of the same view. He has also referred to saying of Imam Shafi (r.a.) and Imam Ahmad (r.a. Who are also of the view that if there is a case of even Qatl-i-Khitan committed by a minor he will also be debarred from inheriting the property of the deceased. Learned amicus curie has relied upon PLD 1992 Peshawar. 187, 1992 PCr.LJ 1960, 1993 PCr.LJ, 68, PLD 1991 SC 724.
9. Mr. Muhammad Hanif Khatana, learned Additional Advocate-General assisted by Mr. Abdul Qayyum Anjum, Advocate has adopted the arguments advanced by Mr. Khalid Naveed Dar, Advocate but added his reliance on PLD 1964 Lahore 451.
10. I have heard learned counsel for the parties and the learned amicus curie at great length. In the instant case, the appellant was convicted and sentenced by learned Sessions Judge, Mandi Bahauddin for the murder of his father, namely, Ghulam Muhammad under section 302(b) read with section 311, P.P.C. During the trial, Ghulam Sarwar, complainant, real uncle of the appellant and Mst. Amina Bibi, real sister of the appellant, daughter in law of the complainant, appeared before the Court in response to the application submitted by the appellant for compromise and made statements on oath stating therein that both of them had forgiven Tariq Mehmood, appellant in the name of Almighty Allah without receiving any consideration for qisas. For the just decision of this case, first of all I would refer to section 311, P.P.C. Which reads as under:--- "Tazir after waiver or compounding of right of Qisas in Qatl-i-Amd. Notwithstanding anything contained in section 309 or section 310 where all the walis do not waived or compounded the right of qisas or keeping in view the principle of Fasad-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 extended to fourteen years at Tazir."
' A bare perusal of the above quoted section would show that where all the Walis do not waive or compound the right of qisas, the Court can punish the accused as Tazir against whom the right of qisas has been waived or compounded. In the instant case there were two Walis, one is the present appellant and other is the sister namely, Mst. Amina. Appellant is accused for the murder of his father and the sister has waived the right of qisas. If the appellant is excluded from inheriting property of the deceased the Ghulam Sarwar would inherit the property according to his right as given in Shariah. At this stage I would also like to refer section 317, P.P.C. Which reads as under: "Person committing qatl debarred from succession.---Where a person committing Qatl-i-Amd or Qatl shibh-i-Amd is an heir or a beneficiary under a will he shall be debarred from succeeding to the estate of the victim as an heir or a beneficiary."
' A reading of this section brings out that there is no mention of qisas in it. The words used are that an accused who commits Qatl-i-Amd or Qatl Shibh-i-Amd is heir or a beneficiary under a will, he shall be debarred from succeeding to the estate of the victim as an heir or a beneficiary. Section 338-F, P.P.C. May also be advantageously reproduced, which reads as under: "Interpretation.---In the inter-predation and application of the provisions of this chapter, and in respect of matters ancillary or skin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
' This section provides that while interpreting or applying any provision of Qisas and Diyat Ordinance, the Court shall be guided by the Injunctions of Islam as laid down in Holy Qur'an and Sunnah.
' Reliance can also be placed on the Hidayah referred to by Mr. Khalid Naveed Dar, Advocate in his arguments and the book referred to by learned counsel for the appellant wherein it has been specifically mentioned that an accused person who commits the murder of a person to whom he is heir, he will be debarred from inheriting the property of the deceased. In the instant case, legal heirs of the deceased had pardoned the appellant and compounded the offence. This being the admitted position, section 345(6), Cr.P.C. Would come into play which reads as under:--- "345. Compounding offences.---(1) The offences punishable under the sections of the Pakistan Penal Code (2)
(3)
(4)
(5)
(6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded."
' This provision of law shows that when an offence is compounded, result would be acquittal of the accused.
11. Now I would advert to the case of Muhammad Ishaq v. The State (PLD 1992 Peshawar 187). In this precedent, it was observed that question of waiver or compounding of the right of qisas would only arise after the accused is proved guilty. In the case in hand, trial was going on when application for compromise was given by the appellant and then the statements of the Walis were recorded, so the question of qisas did not arise because the trial of the appellant has not yet concluded. In Mst.
Beguman and 2 others v. Saroo and another (PLD 1964 (W.P.) Lahore 451, it was ruled that under the principle of justice, equity and good conscience, a murder of his progeny cannot be allowed to benefit by his crime of murder. The murderer may be the father alone but if the decedents claim through him even though not merely from him their title becomes tainted as the source or the channel through which the inheritance has to flow to them becomes blocked and extirpated by reasons of the crime committed by that source.
12. Analyzing the arguments advanced by learned counsel for the appellant, learned Additional Advocate-General Mr. Muhammad Hanif Khatana and Mr. Khalid Naveed Dar, the irresistible conclusion is that as the legal heirs of the deceased have compounded the offence during the trial, no conviction either under section 302(b) or under section 311, P.P.C. Could be recorded against the appellant and the case of the appellant shall be covered by subsection (6) to section 345, Cr . P C .
Resultantly, conviction and sentence recorded against the appellant to undergo imprisonment for 14 years is set aside. He is in jail and shall be released forthwith, if not required to be detained in any other case. However, the order to the extent of debarring the appellant from inheriting the estate of the deceased is maintained. The appeal is, therefore, allowed partially.
13. Before parting with this judgment, I am thankful to Mr. Khalid Naveed Dar, Advocate who put hard labour to dig out the law and rendered me the valuable assistance to reach at a conclusion, as stated above.