1. This order will dispose of Criminal Revision No.148 of 2001 (Allah Rakhi v. Muhammad Saleem and others) and Criminal Revision No.159 of 2001 (Muhammad Saleem v. The State) as order dated 16- 10-2001 passed by the learned Sessions Judge, Chakwal has been challenged in both the petitions.
2. The brief facts of the case for disposal of the instant revision petitions are that Baz Khan son of Allah Ditta, husband of Mst. Allah Rakhi (petitioner in Criminal Revision No. 148 of 2001) was murdered on 20-1-1991 and F.I.R. No.12 of 1991 dated 20-1-1991 was registered under section 302/34, P.P.C. With Police Station Talagang, District Chakwal. The case was tried by the learned Additional Sessions Judge, Chakwal and vide judgment dated 30-11-1992, Muhammad Saleem respondent No.1 was convicted under section 302, P.P.C. And sentenced to death and was also burdened with fine of ks.40,000, in default of payment of fine he had to undergo four years' R.I. He was also convicted under section 452, P.P.C. And sentenced to five years' R.I. And a fine of Rs.5,000, in default thereof to undergo one year's R.I. Muhammad Afzal, co-accused was, however, acquitted of the charge. Criminal Appeal No.206 of 1992 was filed by Muhammad Saleem, respondent against his conviction and sentence and the trial Court had sent up Murder Reference for confirmation of his death sentence and vide judgment dated 9-4-1997 the appeal filed by Muhammad Saleem was dismissed and death sentence was confirmed. Muhammad Saleem, respondent filed Criminal P.L.A. No.6 of 1998 before the Hon'ble Supreme Court and after leave was granted it was converted into Criminal Appeal No.137 of 1998 which was dismissed vide judgment dated 14-6-1999. Review Petition No.36 of 1999 filed by Muhammad Saleem was also dismissed by the Hon'ble Supreme Court on 22-2-2001.
3. Muhammad Saleem filed Criminal Miscellaneous No.837-M of 2000 under section 561-A, Cr.P.C. For stay of execution of death sentence before this Court on the ground that Mst. Ghulam Bi, daughter of Baz Khan, deceased has effected compromise with the convict by waiving her right of 'Qisas' and ' Diyat' but the said petition was withdrawn by learned counsel for the petitioner on 11-6-2001 in order to approach the Apex Court. Thereafter, Muhammad Saleem, respondent moved the learned Sessions Judge, Chakwal on 24-9-2001 for suspension of execution of death sentence on the basis of compromise with Mst. Ghulam Bi were of Kabir Khan and daughter of Baz Khan, deceased. The application was contested by the other legal heirs of deceased Baz Khan except Mst. Ghulam Bi on the ground that Mst. Ghulam Bi is married to Kabir Khan first cousin of Muhammad Saleem convict and the compromise was not genuine and is result of coercion and duress and is not with her free will. Muhammad Saleem had however, attached an affidavit of Mst. Ghualm Bi. Her statement was also recorded on 18-9-2001 by the learned Sessions Judge and execution of death was suspended vide the impugned order dated 16-10-2001.
4. Learned counsel for Mst. Allah Rakhi, petitioner has argued that as the death sentence was awarded as a 'Tazir' and not as 'Qisas', therefore, the offence could not be compromised by one of the legal heirs after confirmation of death sentence up to the level of Hon'ble Supreme Court and withdrawal of the Criminal Miscellaneous under section 561, Cr.P.C. From this Court; that learned Sessions Judge was not competent to adjudicate the matter and suspend the execution of sentence. He has placed reliance on Abdus Salam v. The State 2000 SCMR 338; Manzoor and others v. The State and others 1992 SCMR 2037 and Sana Ullah v. The State PLD 1991 FSC 186 to argue that for recording of conviction under 'Qisas' the prosecution witnesses should have been put to the test of 'Tazkiya-tul-Shahood' which has not been done in this case, therefore, the conviction in this case is to be taken as under ' Tazir'. If the conviction is recorded under Tazir' then all the legal heirs can compromise under section 345, Cr.P.C. Reliance has been placed on Sh. Muhammad Aslam and another v. Shaukat Ali alias Shaukat and others 1997 SCMR 1307; Faqir Ullah v. Khalil uz Zaman and others 1999 SCMR 2203; Muhammad Ashraf v. The State PLD 1991 Lah. 347.
5. Conversely, the petition has been opposed by learned counsel for Muhammad Saleem who in support of his Criminal Revision No. 159 of 2001, has argued that as order of the learned Sessions Judge is incomplete and after suspension of execution of death sentence Muhammad Saleem has not been taken out of the death cell. His conviction was to be altered from section 302, P.P.C. To under section 311, P.P.C. As in original judgment of the learned trial Court the conviction was recorded only under section 302, P.P.C. And it has not been mentioned whether it was under ' Qisas' or ' Tazir', therefore, conviction was to be taken as under 'Qisas' and the death sentence is not maintainable if one of the legal heirs enter into compromise by waiving right of 'Qasis' and Diyat, therefore, learned counsel by placing reliance on Muhammad Jamil v. The State 2001 PCr.LJ 130; Manzoor Ahmad alias Shami v. The State 1991 PCr.LJ 1480; Abid Hussain v. The State PLJ 2000 Cr.
6. Cases Lah. 658; Nisar Ahmad and 2 others v. The State 1994 PCr.LJ 1587; Khalid Nawaz v. The State 1999 SCMR 933 and Baz Muhammad v. The State 2000 PCr.LJ 553 has argued that regarding compromise, even after final judgment, under section 338-E, P.P.C. The jurisdiction lies with the learned trial Court; the matter can be compounded and the learned Sessions Judge has rightly suspended the execution of the sentence.
7. Learned counsel for the State has adopted the arguments of the learned counsel for the petitioner.
8. We have given due consideration to the contentions raised at the bar and examined the relevant provisions and the case-law referred to by learned counsel for the parties.
9. The first question for determination is whether the death sentence awarded to Muhammad Saleem was under ' Qisas' or ' Tazir'. In a case reported in Abdus Salam v. The State (2000 SCMR 338), the Hon'ble Supreme Court has held at page 345-F that in Qatl-e-Amd liable to Qisas. The standard of proof required by section 304(1), P.P.C. For establishing the charge of Qatl-e-Amd is to be observed/adopted i.e. Voluntary and true confession of the commission of offence by the accused before the Court competent to try the offence or by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984, which means that the requirement of Islamic Law was that the witnesses must stand the test of Tazkiya-tul-Shahood. In case of Sanaullah v. The State (PLD 1991 Federal Shariat Court 186), it has been laid down that the test of Tazkiya-tul-Shahood shall be conducted in the cases of Hudood and Qisas and the mode of test of Tazkiya-tul-Shahood has also been elaborated in this judgment. In a case Manzoor and others v. The State and others 1992 SCMR 2037), it has been held that in a case of Qatl-e-Amd liable to death by Qisas, the requirement is that the witnesses must stand the test of Tazkiya-tul-Shahood. In 2000 SCMR 338, the distinction hats been drawn between the conviction as ' Qisas' or ' Tazir'. The relevant portion of page 345 is reproduced below:-- "The basic difference as regards punishments provided in sec--tions 302(a) and 302(b) for Qatl-e- --Amd is that under section 302(a) there is no discretion with the Court but to award sentence of death as Qisas as that is the punishment provided, whereas under section 302(b) punishment is death or imprisonment for life as Tazir."
10. From the above discussion, it is clear that in the instant case, the death sentence was not awarded as Qisas because the accused had neither confessed his guilt before the Court nor the witnesses were put to the test of Tazkiya-tul-Shahood. Therefore, we find that the death sentence of Muhammad Saleem was under Tazir.
11. Now the next question is whether one of the legal heirs can compound the offence or not. This question came up before the Hon'ble Supreme Court in Sh. Muhammad Aslam and another v.
12. Shaukat Ali alias Shaukat and others (1997 SCMR 1307) wherein it has been laid down that if the victim has more than one Wali and one of them enters into compromise with the accused, the Qisas cannot be enforced. However, the Wali who has not waived or has not entered into Badl-e- Sulh will be entitled to receive his share of Diyat subject to section 311, P.P.C. But where the accused person has been awarded sentence for murder as Tazir and not Qisas, the legal heirs cannot waive or accept Badl-e-Sulh. The sentence awarded for murder as Tazir can be compounded but by all the legal heirs of the deceased with permission of the Court concerned. It has been further held that if an accused has been awarded death sentence as Qisas, that can only be undone under section 309 or 310, P.P.C. And if the sentence is awarded by way of Tazir, the Court has the power to grant permission to legal heirs of the deceased and the accused to compound the offence under section 345(2), Cr. P.C. The compromise is to be accepted by the Court and the composition is not automatic and under section 345, Cr. P. C., the compromise is to be made by all the legal heirs of the victim.
13. As far as the competency of the petition before the Sessions Court is concerned, the relevant provisions is section 338-E(2), Cr.P.C. Which reads as under:-- "All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal such questions may be determined by the Appellate Court."
14. Therefore, we do not find any jurisdictional defect in exercise of the power by the learned Sessions Judge.
15. The case-law referred to by the learned counsel for Muhammad Saleem, respondent is distinguishable and not applicable to the circumstances of the instant case.
16. Resultantly, we find that the sentence awarded to Muhammad Saleem deceased with permission of the Court concerned. It has been further held that if an accused has been awarded death sentence as Qisas, that can only be undone under section 309 or 310, P.P.C. And if the sentence is awarded by way of Tazir, the Court has the power to grant permission to legal heirs of the deceased and the accused to compound the offence under section 345(2), Cr.P.C. The compromise is to be accepted by the Court and the composition is not automatic and under section 345, Cr.P.C., the compromise is to be made by all the legal heirs of the victim.
17. As far as the competency of the petition before the Sessions Court is concerned, the relevant provisions is section 338-E(2), Cr.P.C. Which reads as under:-- "All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the Appellate Court."
18. Therefore, we do not find any jurisdictional defect in exercise of the power by the learned Sessions Judge.
19. The case-law referred to by the learned counsel for Muhammad Saleem, respondent is distinguishable and not applicable to the circumstances of the instant case.
20. Resultantly, we find that the sentence awarded to Muhammad Saleem convict was under Tazir which cannot be substituted or altered on the basis of compromise by one of the legal heirs i.e. Mst.
21. Ghulam Bi, daughter of the victim. Consequently, the impugned order dated 16-10-2001 is not sustainable under the law and while accepting Criminal Revision No. 148 of 2001, we set aside the same.
22. Criminal Revision No.159 of 2001 filed by Muhammad Saleem stands dismissed on the above said discussion.