MIAN MUHAMMAD AJMAL, J.---In this case, leave to appeal was granted to consider whether the case falls under section 306(c), P.P.C. And for that reason the appellant could not be convicted of the offence of Qatil-i-Amd liable to Qisas, and secondly, as to whether the case falls under section 308, P.P.C., inasmuch as, the widow of the deceased who is also the daughter of the appellant, is one of the Walis of the deceased and a direct descendant of the appellant, in such circumstances, could death sentence be awarded to the appellant when he was not liable to Qisas.
2. Brief facts of the case are that on 11-10-1990 at 5-00 p.m. In the area of village Dhoke Kasota Dakhli Chirah. Police Station Sihala, District Islamabad, Dil Bagh Hussain appellant while armed with .12 bore gun and Muhammad Javaid acquitted accused empty-handed, in furtherance of their common intention, committed the murder of Muhammad Abbas, son-in-law of the appellant. They were charged under section 302/34, P.P.C. Additional Sessions Judge, Islamabad tried both the accused and vide his judgment, dated 6-1-1992 acquitted Muhammad Javaid by giving him the benefit of doubt. Dil Bagh Hussain was, however, convicted under section 302, P.P.C. And sentenced to death plus fine of Rs,15,000. It was directed that, on realization, 2/3rd of the fine amount would be paid to the legal heirs of the deceased as compensation. It was also ordered that if the death sentence of the appellant is not confirmed and he defaults in payment of fine, then he would further undergo two years' R.I. The appellant challenged his conviction and sentence by filing Criminal Appeal No,5 of 1992 before the Lahore High Court, Rawalpindi Bench, which was dismissed vide judgment impugned herein confirming his death sentence and maintaining the fine. Leave was sought which was granted as aforesaid in para.1.
3. Learned counsel for the appellant confined his arguments only on the quantum of sentence. He referred to sections 306, 308 and 309, P.P.C. And urged that Qatl-i-Amd shall not be liable to Qisas when any Wali of the victim is a direct descendant of the offender and under section 308, P.P.C.
Were offender guilty of Qatil-i-Amd is not liable to Qisas, he shall be liable to Diyat determinate by the Court and may, having regard to the facts and circumstances of the case, be punished with imprisonment which may extend to fourteen years as Ta'zir. He further submitted that widow of the deceased i.e, daughter of the appellant and brother of the deceased have waived their right of.
Qisas without any compensation, therefore, in such circumstances, the appellant cannot be awarded death sentence which may be altered to the payment of Diyat and punishment as provided under section 308(2), P.P.C.
4. Learned counsel for the State vehemently submitted that there is a minor son of the deceased and under clause (b) of subsection (1) of section 309, P.P.C. Where the right of qisas vests in a minor; it cannot be waived. He also referred to sections 311 and 312, P.P.C. And argued that Qisas could not be waived when there is a minor Wali of the deceased. He, however, half-heartedly conceded that in view of section 308, P.P.C. The Qisas would not be liable where even one of the Walis is a direct descendant of the offender.
5. For proper appreciation of the legal proposition put fourth, it would be appropriate to reproduce sections 306, 308 and 309, P.P.C., which read as under:-- "306. Qatl-i-Amd not liable to Qisas.----Qatl-i-Amd shall not be liable to Qisas in the following cases, namely:--
(a) When an offender is a minor or insane: Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall to be exempted from Qisas;
(b) when an offender causes death of his child or grandchild, how low-so ever, and
(c) when any Wali of the victim is a direct descedant, howlowsoever, of the offender.
308. Punishment in Qatl-i-Amd not liable to Qisas, etc.--(1)Where an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable unde clause (c) of section 307, he shall be liable to diyat: ' Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or by such person as may be determined by the Court: ' Provided further that where at the time of committing Qatl-i-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realise the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir: ' Provided further that there the Qisas is not enforceable under clause (c) of section 307 the offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir.
(2) Notwithstanding anything contained in subsection (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Ta'zir.
309. Waiver-Afw of Oisas in Oatl-i-Amd.
(1) In the case of Qatl-i-Amd an adult sane Wali may, at any time and without any compensation, waive his right of Qisas: Provided that the right of Qisas shall not be waived--
(a) where the Government is the Wali; or
(b) where the right of Qisas vests in a minor or insane.
(2) Where a victim has more than one Wali, any one of them may waive his right of Qisas: ' Provided that the Wali who does not waive the right of the Qisas shall be entitled to his share of Diyat.
(3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas of the Wali of the other victim.
(4) Where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas against the other offender."
' Subsection (c) of section 306 above-quoted provides that when any Wali of the victim is a direct descendant howlowsoever of the offender, then Qatl-iAmd shall not be liable to Qisas. Proviso II of section 308 reproduced above states that despite subsection (1) of section 308, the Court in addition to the punishment up to fourteen years to the offender as Ta'zir having regard to the facts and circumstances of the case, whereas subsection (2) of section 309, abovementioned contemplates that where a victim has more than one Wali and any one of them waives his right of Qisas and those who do not waive their right of Qisas, shall be entitled to their share of Diyat.
6. In the instant case, the appellant is charged for the murder of Muhammad Abbas his son-in-law, whose daughter Mst. Farida Bibi was married to the deceased who has, a minor son out of the wedlock. Mst. Farida Bibi widow and her son are Walis of the deceased and the widow being the daughter of the offender/appellant is his direct descedant. Therefore, under section 306(c), P.P.C.
The offence committed by the appellant was not liable to Qisas, i.e, death, however, such an offender was punishable under section 308, P.P.C. And offender was liable to pay Diyat and under its subsection (2) in addition to punishment of Diyat, he could be awarded imprisonment up to 14 years as Ta'zir. Besides the aforesaid provision of law, the widow and brother of the deceased have waived their right of Qisas, hence under subsection (2) of section 309, P.P.C. Where there are more than one Wali of the victim, the Wali who does not waive his right of Qisas, shall be entitled to his share of Diyat. In this case there are more than one Wali, i.e, widow and the minor son of the deceased whose right of Qisas cannot be waived, therefore, minor son is entitled to his share of Diyat.
7. In view of the above, we hold that death sentence awarded to the appellant is not sustainable and thus, the same is altered to the punishment provided in section 308(2), P.P.C. The widow being the daughter of the appellant is the direct descendant of the offender and she has also waived her right of Qisas without any compensation, therefore, the appellant shall pay the share of Diyat to the minor son of the deceased. Reference may be made to Khalil-uz-Zaman v. Supreme Appellate Court (PLD 1994 SC 85) and Muhammad Iqbal v. The State (1999 SCM R 403).
8. Learned counsel for the appellant undertakes at the bar that the landed property valuing the share of Diyat of the minor son of the deceased i.e, Rs,2,36,687.50 shall be transferred in his name within two months. He is directed to mutate the landed property in the name of the minor son equivalent to the share of his Diyat amount i.e, Rs,2,36,687.50 as soon as possible and furnish the copy of the mutation to the Registrar of this Court for placing it on record.
9. In view of the above, the death sentence of the appellant is altered to the payment of Diyat to the minor son of the deceased and he is also sentenced to imprisonment for fourteen years as Ta'zir. This appeal is, accordingly, disposed of in the above terms.