' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,109 of 1995 Criminal Appeal No,26/J of 1996 filed by Raashid Mahmood, appellant and Criminal Appeal No,27/J of 1996 filed by Javed Iqbal, appellant, who were convicted and sentenced by learned Additional Sessions Judge, Toba Tek Singh vide his judgment, dated 16-4-1995 as under:--
(1) Raashid Mahmood appellant under section 34/302, P.P.C. To undergo life imprisonment for the murder of Mst. Akbari deceased and a fine of Rs,30,000, and in default two years S.I. He was also ordered to pay Rs,10,000 as compensation to the legal heirs of Mst. Akbari Bibi deceased under section 544-A, Cr.P.C. And in default six months S.I., with the benefit of section 382-B, Cr.P.C. He was also convicted and sentenced under section 34/302, P.P.C. For the murder of Mst. .Razia deceased to death and a fine of Rs,50,000 and in default two years S.I. He was also ordered to pay Rs,20,000 as compensation to the legal heirs of Mst. Razia under section 544-A, Cr.P.C. And in default six months S.I, with the benefit of section 382-B, Cr.P.C. He was also convicted and sentenced under section 34/302, P.P.C. For the murder of Shahnaz deceased to under life imprisonment and a fine of Rs,30,000 and in default two years S.I. He was also ordered to pay Rs,10,000 as compensation to the legal heirs of Mst. Shahnaz under section 544-A, Cr.P.C. And in default six months' S.I., with the benefit of section 382-B, Cr.P.C. The sentences of imprisonment were ordered to run one after the other.
(2) Javed Iqbal, appellant under section 34/302, P.P.C. To undergo life imprisonment for the murder of Mst. Akbari deceased and a fine of Rs,30,000 and in default two years' S.I. He was also ordered to pay Rs,10,000 as compensation to the legal heirs of Mst. Akbari under section 544-A, Cr.P.C. And in default six months' S.I., with the benefit of section 382-B, Cr.P.C. He was also convicted and sentenced under section 34/302, P.P.C. For the murder of Mst. Shahnaz deceased to death and a fine of Rs,50,000 and in default two years' S.I. He was also ordered to pay Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Mst. Shahnaz, and in default six months S.I. With the benefit of section 382-B, Cr P.C. He was also convicted and sentenced under section 34/302, P.P.C. For the murder of Mst. Razia deceased to undergo life imprisonment and a fine of Rs,30,000 and in default two years' S.I. He was also ordered to pay Rs,10,000 as compensation to the legal heirs of Mst. Razia under section 544-A, Cr.P.C. And in default six months' S.I, with the benefit of section 382-B, Cr.P.C. The sentences of imprisonment were ordered to run one after the other.
2. Occurrence in this case took place on 2-5-1993 at 8-45 a.m. Within the jurisdiction of Police Station City Kamalia at a distance of one K.M. While the matter was reported to the police on the same day at 9-1/2 a.m. By Rana Abdul Sattar, complainant P.W.9 and the formal F.I.R. Exh.P.O. Was recorded by Muhammad Aslam Inspector/S.H.O., P.W.12.
3. Briefly stated the facts of the case are that the complainant had two sons namely Mushtaq and Irshad. He has also five daughters, out of whom three namely Shahnaz, Razia and Fauzia were living with him. He owned 15 acres of agricultural land in all. Except for two acres, that was transferred to Mst. Akbari and the five daughters of the complainant, the entire land was sold out. Mushtaq alias Makha wanted to take away the aforementioned piece of land measuring 2 acres from the complainant's wife and his daughters. All the six woman refused. Mushtaq kept pressing upon, his demand in vain. Ultimately, Mushtaq alias Makha armed with a hatchet, his sons Javaid and Rashid each armed with a hatchet entered the compound of the complainant's house at 8-45 a.m. On 2- 5-1993. Mushtaq exhorted, that was the day to reward the woman for not parting with the land in favour of Mushtaq, and he shouted at his sons aforementioned that none should escape. Mushtaq alias Makha inflicted successive blows upon his mother names Mst. Akbari, she fell down after receiving the blows on her head. Then, Mushtaq added a blow with its hatchet at the neck of Akbari piercing at its right side.
' Javaid inflicted a blow with its hatchet at the forehead of Mst. Shahnaz and she fell down. Mushtaq added a blow striking at the left jaw of Mst. Shahnaz. Mushtaq also gave blows with its hatchet at the right elbow and the left wrist of Mst. Shahnaz. Rashid gave a blow with its hatchet at the head of Mst. Razia. Mushtaq dragged and threw off Mst. Shahnaz. And then he ran and inflicted a blow with its hatchet on the back of Mst. Razia who fell down. Javaid inflicted a blow with his hatchet at the right cheek of Mst. Razia whose nose and mouth were cut off, her left eye was also excavated. The occurrence was witnessed by the complainant and its daughter Mst. Fauzia. The alarm raised by themselves attracted Sardar Khan to the place of occurrence from within the street nearby. He also perceived the incident. The inhabitants of the locality and Sardar Khan abovementioned implored the three assailants who escaped. The complainants wife Mst. Akbari and his two daughters Mst.
Shahnaz and Mst. Razia all the three instantaneously succumbed to the injuries.
' The motive behind the occurrence was that Mushtaq's greed for land that received a refusal from the female owners. All the three offenders had committed the three murders in furtherance of their common intention.
4. After registration of the formal F.I.R., Muhammad Aslam, Inspector/S.H.O. P. W.12 proceeded to the spot, collected blood-stained earth from the presence of dead bodies of Mst. Razia Bibi, Shahnaz Bibi and Mst. Akbari Bibi, all the three deceased, which were taken into possession vide memo. Exh .
P. P. , Exh .P .Q . And Exh. P.R. , prepared injury statement Exh.P.A. Regarding the dead body of Mst.
Shahnaz Bibi and inquest report Exh.P.B., also prepared injury statement Exh.P.D. Regarding Mst.
Akbari Bibi deceased and her inquest report Exh.P.D., therefore, prepared injury statement Exh.P.G.
And inquest report Exh.P.H. About the dead body of Mst. Razia Bibi deceased. He arrested Javaid Iqbal and Rashid Mahmood appellants on 5-7-1993. On 8-7-1993, Javed Iqbal accused while in custody led to the recovery of hatchet P.10 which was taken into possession vide memo. Exh.P.T. On the same day, Rashid Mahmood accused led to the recovery of hatchet P.9 which was taken into possession vide memo. Exh.P.S. After completion of investigation, accused were challaned to face the trial.
5. Prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned A.D.A.
Tendered in evidence report of Chemical Examiner Exh.P.U. And that of the Serologist Exh.P.U./1, another report of Chemical Examiner Exh.P.V. And that of the Serologist Exh.P.V./1 and closed the prosecution evidence, then the statements of the appellants were recorded under section 342, Cr.P.C. They have also produced in their defence three D.Ws. Namely Muhammad Sadiq, Rana Hassan Khan and Sardar Khan. After conclusion of the trial the appellants were convicted and sentenced as stated above.
6. During the pendency of the appeals, applications under section 345, Cr.P.C. Were moved stating that heirs of the deceased have waived their right of Qisas and granted pardon to appellants in the name of Allah (Almighty). The compromise deed alongwith allied documents was sent to the concerned Sessions Judge for report. According to report of the learned Sessions Judge, one of the heir of Akbari Bibi (deceased) namely Fauzia was not willing to grant pardon to the appellant by waiving her right of Qisas. Similarly, Waqar Saeed aged 11 years was minor being heir of Shahnaz and even his share of Diyat was not deposited. Till today the share of Diyat of Fauzia Bibi and Waqar Saeed has not been deposited and learned counsel submits that since all the legal heirs of the three deceased ladies have waived their- right of Qisas and granted pardon to the appellants and only two heirs, one of Mst. Akbari Bibi, namely, Fauzia and the other Waqar Saeed a minor boy son of Shahnaz Bibi deceased have not waived their right of Qisas and granted pardon, it is not a case of death sentence and the period which the appellants have remained in jail may be treated to be sufficient punishment.
7. Learned counsel for the State has no cavil with the proposition advanced by learned counsel for the appellants that in such like eventuality, death sentence cannot be awarded to the appellants.
8. We have heard learned counsel for the parties. In the instant case, one of the accused, namely, Mushtaq Ahmad was killed even before conclusion of the trial. There were three deceased, namely, Mst. Akbari Bibi, Mst. Razia and Mst. Shahnaz, in this case. The accused nominated in the F.I.R. Were Mushtaq alias Makha, Javed Iqbal and Rashid. Mushtaq was not arrested and he was declared P,O.
And as stated above, he was done to death later on in a police encounter. Javed Iqbal and Rashid faced the trial. Mst. Akbari Bibi (deceased) as per verification report submitted by the learned Sessions Judge was survived by:--
(i) Abdul Sattar (husband)
(ii) Muhammad Irshad (son)
(iii) Mst. Manzooran Bibi (daughter)
(iv) Mst. Fauzia Bibi (daughter) her parents had already died.
' Similarly, Mst. Razia Bibi (deceased) was survived by
(i) Abdul Sattar (father)
(ii) Muhammad Irshad (brother). She was unmarried lady.
' Mst. Shahnaz Bibi (deceased) left behind the following heirs:-- ' Saeed Ahmad (husband) Iram Saeed (daughter) Kiran Saeed (daughter) Waqar Saeed (son) minor.
9. Mst. Fauzia Perveen one of the legal heir of Mst. Akbari in her statement recorded by learned Sessions Judge as A.W.5 clearly stated that she did not pardon Javed Iqbal and Rashid, convicts.
Rest of her legal heirs have waived their right of Qisas and pardoned the convicts. The legal heirs of Mst. Razia Bibi (deceased) have also waived their right of Qisas and granted pardon to the, convicts. Out of the legal heirs of Mst. Shahnaz Bibi deceased except Waqar Saeed, minor, they have waived their right of Qisas but the share of Diyat of the minor has admittedly not been deposited by the convicts till today. In a case of such-like nature, section 307, P.P.C. Caters for the situation which may be reproduced hereunder:--
(1) 307. Cases in which Qisas for Qatl-i-Amd shall not be enforced. ---(1) Qisas for Qatl-i-Amd shall not be enforced in the following cases namely:-- ' When any Wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and (c)
(2)
' In this case, admittedly, except two heirs, all the remaining have waived their right of Qisas and granted pardon to both the convicts. From a bare perusal of sub-clause (b) of subsection (1) to section 307, P.P.C. Ibid, it is crystal clear that the convicts cannot be awarded the sentence of death.
10. Now coming to the quantum of sentence to be awarded to the Convicts, one has to advert to section 311, P.P.C. Which reads as under:-- "311. Ta'zir after waiver or compounding of right of Oisas in Oatl-i-Amd. --- Notwithstanding anything contained in section 309, P.P.C. Or section 310 where all the Wali do not waive 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 may extend to ten years as Ta'zir."
' In view of what has been discussed above, convictions recorded by the learned trial Court are maintained but the sentence of death on one count and imprisonment for life on two counts to both the appellants are altered to {14) fourteen years' R.I. Under section 311, P.P.C. However, all the sentences shall run concurrently with the benefit of section 382-B, Cr.P.C. The amounts of fine awarded to the convicts on three counts converted into compensation as required under section 544-A, Cr.P.C. This will be apart from the amount of compensation awarded on three counts to the convicts by the learned trial Court. The sentence in default of payment of amount of compensation now converted from fine shall remain the same as ordered by the learned trial Court. Appeals filed by both the appellants are dismissed with alteration in the sentence. Death sentence of both the appellants namely, Javed Iqbal and Rashid Mehmood is not confirmed. Murder Reference is answered in the negative.
Order acordingly.