' KHALIL-UR-REHMAN RAMDAY, J.--- One Asghar Ali and his brother's wife namely, Mst. Razia were tried by a learned Additional Sessions Judge at Faisalabad for the murder of a five years old child, namely, Mst. Alia Bibi who was the daughter of an elder sister of Mst. Razia Bibi accused. Through his judgment, dated 6-2-1995 the said learned trial Judge found both the said accused persons guilty of the said charge, convicted each one of them under section 302, P.P.C. And while he punished Asghar Ali with death, he directed Mst. Razia Bibi to suffer imprisonment for life. Each one of them was further ordered to pay Rs,10,000 to the heirs of Mst. Alia deceased under section 544-A, Cr.P.C. Or to suffer six months' R.I. In default thereof.
2. Murder Reference No,67 of 1995 seeks confirmation of the said sentence of death awarded to Asghar Ali, convict while Criminal Appeal No,87 of 1995 filed by both the said convicts, impugn the above-noticed conviction and punishments recorded against them. Both these matters are being disposed of together through this single judgment.
3. During the pendency of these matters before this Court, it was submitted that the heirs of Mst.
Alia deceased had entered into a compromise with the appellants and it was consequently prayed that both of them be acquitted.
4. In verification of the said compromise, the two parents of Mst. Alia deceased, namely, her father Allah Ditta and her mother Mst. Saleema Bibi appeared before us on 30-10-2000 and made statements on oath after each one of them had been identified by Kh. Muhammad Tahir Majeed Advocate.
5. Both these heirs of the Said deceased submitted before us that Mst. Alia deceased was aged about 4/5 years when she was murdered; that Mst. Razia Bibi appellant was the younger sister of Mst. Saleeman who was the mother of Mst. Alia deceased, that Mst. Razia Bibi appellant was issueless while Allah Ditta and Mst. Saleeman Bibi had four daughters; that consequently Mst Razia Bibi appellant adopted the said Mst. Alia deceased who was resultantly living with Mst. Razia appellant in her house; that Mst. Alia deceased was murdered by the two appellants; that they were the only heirs of the said deceased; that they had entered into a compromise with the two appellants and each one of them had granted Afw to each of the two appellants in the name of Allah with respect to the murder in question and they consequently prayed that the two appellants be acquitted.
6. We are not dissatisfied with the voluntary nature of the above noticed compromise because of the abovementioned close relationship of the parties with each other. However, in view of the peculiar circumstances of the present case, we issued notice to the two appellants to show cause why this Court should not withhold the permission for compounding of the offence in question and why the two appellants should not be punished under section 302(c) of the P.P.C.
7. It was submitted by the learned counsel for the appellants that after grant of Afw by the heirs of the deceased, this Court was not possessed of any power to refuse to acquit the convicts and that the appellants, therefore, deserved to be acquitted.
8. The question which, therefore, arises for resolution is whether grant of Afw by all the heirs of the deceased persons to the killer/killers of the said deceased would entail an automatic acquittal of the culprits?
9. The relevant provisions of law are contained in section 309 of the P.P.C. Which are reproduced hereunder for ready reference:-- "309(1). In the case Qatl-e-Amd, an adult sane Wali may, at any time and without any compensation, waive his right of Qisas."
It will thus, be noticed that the effect of grant of Afw by the heirs of the deceased is just the waiver of the right of Qisas and no more. There is no provision in the Pakistan Penal Code or for that matter in any other law A which may command that on grant of Afw to the convict by the heirs of the deceased, the convict shall be acquitted. What is prescribed by this provision is that once an adult sane Wali grants Afw then Qisas shall not be exacted.
10. The acquittal of an accused person or a convict is governed by the provisions of section 345(6) of the Cr.P.C. Which lay down that once an offence has been compounded, the same shall have the effect of an acquittal of the accused with whom the offence had been compounded.
Subsection (7) of section 345, Cr.P.C. Further prescribes that no offence could be compounded except as provided by the said section. Qatl-e-Amd is an offence which falls within the purview of subsection (2) of section 345, Cr.P.C. This provision provides that the offence covered by the said section could be compounded with the permission of the Court.
11. The position which thus, emerges from a perusal of the above noticed provisions of the Pakistan Penal Code and the Code of Criminal Procedure is that the acquittal is not an automatic consequence of the compounding of the offence of Qatl-e-Amd by the heirs of the deceased with the convict/accused person. In the event of such a compromise what can be claimed by the accused/convict is the non-exacting of the Qisas and that such a person can be acquitted only if the Court permits the compounding of the offence in question.
12. Therefore, the next and the crucial question which now confronts us is whether we should or should not grant permission for the compounding of the offence in the present case.
13. The prosecution case, as found proved by the learned trial Judge and not contested before us, is that Mst. Alia Bibi deceased was the daughter of Mst. Saleeman Bibi that Mst. Razia Bibi appellant was a younger sister of the said Mst. Saleeman Bibi who was married to one Abdul Hameed and who did not get blessed with any child and consequently adopted Mst. Alia deceased who was a 4/5 years child; that it was the talk of the village that Mst. Razia appellant had developed illicit relations with Asghar Ali appellant who was a brother of her husband; that the two appellants suspected that it was the deceased child who had spread this news in the village and that the two appellants, therefore, clubbed this innocent child to death. Mst Alia deceased was found with nine blunt weapon injuries on various parts of her body. She succumbed to the injuries at the very place of occurrence within a few minutes of receiving the same. This was a callous and cold-blooded murder of an innocent child stemmed in an immoral and extra-marital relationship of the two appellants with each other. Such a conduct on the part of the said appellants is a brutal and dastardly act. Conscience revolts when one thinks of showing any leniency or sympathy towards the ones responsible for the same. We have, therefore, not been able to persuade ourselves to exercise our discretion in favour of the appellants before us. We, resultantly withhold permission for the compounding of the offence in question.
14. This is thus, a situation where punishment of Qisas is not applicable according to the Injunctions of Islam and where the convicts cannot even be acquitted because this Court has withheld permission for the compounding of the offence. The said situation is covered by subsection (c) of section 302 of the P.P.C.
15. The result is that in view of the waiver of the right of Qisas by the neirs of Mst. Alia deceased, the conviction of the two appellants and the resultant punishment of death and imprisonment for life awarded to Asghar Ali and Mst. Razia Bibi, respectively, under section 302, P.P.C. Are set aside. Each one of them is, however, convicted under section 302(c) of the P.P.C. And is directed to suffer 14 years' R.I. Each one of them shall be allowed the benefit of the provisions Of section 382-B, Cr.P.C.
The direction about the payment of compensation under section 544-A, Cr.P.C. Is maintained.
16. Murder Reference No,67 of 1995 and Criminal Appeal No,87 of 1995 are disposed of in the above terms.
' Sentence of death is not confirmed.