' This judgment will dispose of Criminal Revision No,159 of 1998 and Criminal Appeal No,207 of 1998 directed against the judgment, dated 4-3-1998 passed by the learned Sessions Judge, Sialkot, whereby he convicted the appellant under section 302(c), P.P.C. And sentenced him to undergo 14 years' R.I. With a direction to pay compensation of Rs,25,000 to the legal heirs of the deceased, who had not waived their right of Qisas, or in default thereof, six months further R.I. Benefit of section 382-B, Cr.P.C. Was also granted to him.
2. Brief facts, as narrated in the F.I.R. By the complainant, are that the deceased and his brothers were involved against each other in a dispute over property on account of which on 24-4-1997 an altercation had taken place between the appellant and acquitted co-accused and the deceased.
Mst. Zaibun-Nisa widow of the deceased and complainant in this case informed this incident to his brother Zulfiqar Ali, who alongwith his friend came to the house of Mst. Zaib-un-Nisa, his sister. In the meantime Muhammad Jameel armed with Chhuri and his brother Muhammad Shakeel empty handed came there. On raising Lalkara by Muhammad Shakeel acquitted accused that Javaid Iqbal deceased be killed for teaching him a lesson for demanding share of property. Jameel appellant inflicted certain Chhuri blows on the chest of the deceased and when Javaid Iqbal fell down Jameel appellant inflicted more blows on his person. When Zulfiqar and Ziaullah P. Ws. Tried to rescue the deceased they made good their escape.
3. The matter was reported to the police. The, Investigating Officer after completing necessary formalities visited the spot. He prepared the rough site plan Exh.P.K. Of the place of occurrence and secured from there the blood-stained earth through memo. Exh.P.F. All other articles relating to the occurrence were taken into possession by the Investigating Officer. On 22-5-1997 both the accused appeared before the Investigating Officer who on the following day sent Muhammad Shakeel to judicial lock-up and on 25-5-1997 he got recovered Chhuri P.4 on the pointation of Muhammad Jameel accused/appellant.
4. Prosecution in order to prove its case has produced as many as 10 witnesses including eye- witnesses, Investigating Officer and Doctor. Report of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.N. And Exh.P.O. Were also tendered in evidence by the prosecution. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. One D.W. Was also produced by the defence. Both the accused, one acquitted by the learned trial Court and the appellant herein pleaded not guilty and claimed their innocence.
5. Learned counsel for the appellant after going through the evidence recorded by the trial Court submits that in fact deceased was killed by some unknown person and the appellant has been falsely implicated in this case. He further submits that two eye-witnesses namely Zaib-un-Nisa, complainant and her real brother Zulfiqar Ali did not see the occurrence and even the same did not take place at the residence of Mst. Zaib-un-Nisa complainant. He further submits that both the eye-witnesses are interested and inimical towards the appellant. Adds that there is no independent corroboration to the statement made by the two eye-witnesses mentioned above. He further adds that recovery has also been planted on the appellant and the same has been disbelieved by the learned trial Court. He submits that the appellant is real brother of the deceased Javaid Iqbal. Except complainant and her minor son all other legal heirs of the deceased have waived their right of Qisas. He submits that no conviction under section 302(c), P.P.C. Could have been awarded to the appellant and the conviction if any, could have been awarded under section 309 read with section 311; P.P.C.
6. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that appellant is the real brother of the deceased and in a very brutal manner he has caused injuries on the person of deceased and most of them are on the vital parts of the body of the deceased, so he does not deserve any leniency. He further submits that occurrence had taken place in the house of complainant and she was the natural witness. He supports the judgment of the learned trial Court but as far as contentions of the learned counsel for the appellant that no conviction under section 302(c), P.P.C. Could have been awarded and conviction if any, could have been awarded under section 309/311, P.P.C. Are concerned (sic).
Learned counsel for the State and learned counsel for the complainant have no-point to rebut these submissions.
7. I have heard the learned counsel for the parties and also have gone through the evidence recorded by the learned trial Court. In the instant case it was a promptly lodged F.I.R. Both the. Eye- witnesses Zaib-un-Nisa and Zulfiqar Ali are natural witnesses. There is no previous background of enmity between the parties. Appellant has killed his real brother giving him 8 incised wounds on his person and most of them are on vital parts of his body. Ocular account in this case is corroborated by the medical evidence. It may be noted here that during the trial of the case, father of the appellant who is also father of the deceased had made an application to the learned trial Court on 3-12-1997 stating therein that he and the other legal heirs of the deceased were ready to waive their right of Qisas and they did it but the wife of the deceased who is complainant in this case and the minor son of the complainant had not waived their right of Qisas. In my view prosecution has proved its case against the appellant beyond any shadow of doubt. However, we can seek help from sections 309 and 311, P.P.C. Which are reproduced below:-- "309 Waiver (Afw) of Qisas in Qatl-e-Amd.---(1) In the case of Qatl-eAmd, an adult 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 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 against 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."
"311. Ta'zir 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 waive or compound 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 may extend to fourteen years as Ta'zir."
A bare perusal of the abovesaid sections would show that unless all Walis of the deceased waive their right of Qisas only then the accused person could be convicted under section 309/311, P.P.C.
But in the instant case all the legal heirs of the deceased except his wife and minor son have waived their right of Qisas, so no conviction under section 302(c), P.P.C., can be maintained as awarded by the learned Sessions Judge, Sialkot. Keeping in view the circumstances of the case and sections 309/311, P.P.C. Relating to Qisas and Diyat Ordinance, I am of the considered opinion that conviction can only be awarded to the appellant under sections 309 and 311, P.P.C., so I convert the same from section 302(c), P.P.C. To sections 309. And 311, P.P.C. As far as sentence under section 311, P.P.C. Is concerned that is 14 years maximum as provided therein but the appellant being the real brother of the deceased and other legal heirs of the deceased as mentioned above have waived their right of Qisas, so the sentence which is awarded under section 311, P.P.C. Is to be read with section 309, P.P.C. i.e, fourteen years with the benefit of section 382-B, Cr.P.C. However, the appellant shall not be released unless he served out his sentence and also Diyat amount is paid to the wife of the deceased who is complainant, and minor son of the deceased in accordance with Sharia and prevalent rate of Diyat at the time of occurrence. Diyat amount to the minor according to his share would be paid in shape of defence saving certificates. With these observations this Criminal Appeal stands disposed of.