MIAN ALLAH NAWAZ, C.J.- This petition, under Section 439 Read with Section 345 (5-A) of Cr.P.C, by Muhammad Jabbar, seeks to call in question the order dated 3.9.1999 whereby learned Addl.
Sessions Judge, Lahore partially accepted an application embodying settlement, but declined to allow the same with regard to Habib Ullah and Aaman deceased in following terms:- "Sequal to all above the two minors, Muhammad Jamaal and Mst. Raheela may well waive right of Qisas against the petitioner, through their legal guardian, which is allowed for the compromise recorded and placed on record in the shape of affidavit and adverted so, therefore, the petitioner is acquitted of the murder of Mst. Nasreen.
Since for the reasons recorded above and for the findings that conviction cannot be set aside/compounded or compromised for the murder of Mst. Aamna as the above two minors, are not Wa/t/legal representatives of Mst. Aamna, and for her murder, he is to be hanged, therefore, the petitioner through his counsel has not consented to the payment of "Diyat" proportionate to the shares of LRs. Of Mst. Aamna as L.Rs. Of Habib Ullah therefore, sentence of death shall have to be .
Executed against the petitioner for the murder of Habib Ullah. There is no ambiguity that ease cannot be compromised for the murder of Mst. Aamna- victim, therefore, petition in had is partly accepted to the extent of murder of Mst. Nasreen but is dismissed to the extent of Mst. Aamna and sentence of death shall have to be executed against him, as already arranged."
2. Briefly, Mst. Nasreen, Mst. Aamna and Habib Ullah were assassinated by Muhammad Jabbar/herein petitioner on 25.8.1988. Mst. Nasreen was his wife while Mst. Aamna and habib Ullah were his sister-in-law and father-in-law respectively. F.I.R. No. 275/88 was lodged at Police Station North Cantt, Lahore at the instance of one Mst. Bismillah/the real mother of Mst. Nasreen and Mst.
Aamna. The petitioner was tried under Section 302, PPC and was sentenced to death on all the three counts on 22.12.1988. Feeling aggrieved, he preferred three appeals Nos. 1, 2 and 3 of 1988 which were dismissed. However, sentences, in all the counts, were reduced to life imprisonment, Dissatisfied, Mst. Bismillah/complaisant preferred a petition for leave to appeal which was allowed by Supreme Court and the decision of the Court of trial was restored. So, the trial of petitioner finally came to an end in the Courts with the award of death penalty on three counts to him.
3. Since this petition has arisen out of act of condonation by the legal heirs of Mst. Nasreen, it seems necessary to note the legal heirs of the aforesaid deceased namely Mst. Nasreen, Mst.
Aamna Bibi and Habib Ullah:- Legal Heirs of Mst. Nasreen.
(1) Muhammad Jabbar/convict (Husband)
(2) Muhammad Jamaal (minor son)
(3) Mst. Raheela (minor daughter)
Legal Heirs of Mst. Aamna Bibi.
(1) Maqsood Nabi (Husband)
(2) Imran . (son)
(3) Mst. Saima (Daughter)
(4) Mst. Shabnam "
(5) Mst. Saira ' "
(6) Mst. Sumaira "
(7) Mst. Ambreen "
(8) Mst. Reema "
Legal Heirs of Habib Ullah.
(1) Bismillah (Widow)
(2) Mst. Shaheen (Daughter)
(3) Mst. Perveen "
(4) Mst. Ghulam Fatima (Sister)
(5) Mst. Raheela d/o Muhammad Jabbar (Grand Daughter)
(6) Mst. Shabnam d/o Maqsood Nabi "
(7) Mst. Saima "
(8) Mst. Saira "
(9) Mst. Sumaira "
(10) Mst. Reema "
(11) Imran s/o Maqsood Nabi (Grand son) "
4. The legal heirs of petitioner lived with his brother Ghulam Haidar. The aforesaid person moved an application before the learned Trial Court for seeking acquittal of petitioner on the premises that the legal heirs of assassinated persons had pardoned the offence committed by Muhammad Jabaar and so the aforesaid person/convict be released from Jail. This application, however, was withdrawn on 7.7.1999. Thereafter, said Ghulam Haidar obtained an order from the Court of learned Guardian Judge appointing him as the guardian-ad-litem on behalf of legal heirs of Mst. Nasreen and moved the same application afresh. The learned Addl. Sessions Judge recorded the statement of, so appointed, guardian-ad-litem and came to the conclusion that the convict Muhammad Jabbar was entitled to acquittal qua the murder of Mst. Nasreen. He, however, found that he was not prepared to pay 'Diyat' proportionate to shares to LRs. Of Mst. Aamna as well as Habib Ullah, therefore, declined to accept his request. This is the order which is subject-matter of challenge in this criminal revision.
4. The submissions, made by learned counsel for the petitioner, may be summarized as below:- Firstly That pardon ( ^J') is mercy ( which is an attribute of divinity while Qisas is retributive penalty prescribed by the Holy Book. The System of Qisas, as ordained by Holy Qur'an, leans towards Afw { ,/**). According to learned counsel by, this concept Islam promotes amity, peace and harmony in society. Reliance was placed on following verses of Holy Qur'an-{{ URDU TEXT }} Surah Ai-Baqarah Verse No. 178 Page 70 Surah AI-Ni$a "92 209 Surah Ai-Airaf " 156 378 St 388 Reference was also made to Fiqah Abdullah bin Masood by Dr. Rawwas (V) Kitab-uI-Janayat-Waddiyat min al-Hadaya Mutaia ah Uloom-e-Islamic Urdu page 58 and 59 (translated by Ghazi Ahmad).
Imam Zufar wa-Aara-o-Hoo Al-Fiqhiyyah by Abu Al-Yaqzan Atiyyah Al-Jabroori, Vol-I, page 316 and 317.
On the strength of the above authorities, it was contended that right of Qisas/pardon was/is heritable. The son of a murderer can inherit the right of Qisas and exercise the right of Afw. Reliance was made to celebrated authorities:- Bada-al-Sana'i by Al-Kaasani Vol. VII (translated by Khan Muhammad Chawala) page 559, 571 and 582.
Al-Sharh al-Saghir by Ahmad bin Muhammad bin Ahmad Al-Darir, vol (IV) page 358 to 368.
Al-Tashri Al-Jana'i Al-Islami by Dr. Abdul Qadir Audah Shaheed, translated by Sajid-ur-Rahman Kandhalvi Vol. II, P 59 to 64, 170 to 173, 319 to 331.
Al-Fiqhul Islami wa Adillatuhu by Dr. Wahbah Al- Zuhaili, Vol. VI p. 286 to 295.
Secondly: That the Assassin is not entitled to inherit the estate of victim. However, this rule of Muslim Jurisprudence is only restricted to murder and does not pass to his heirs. Reliance was placed on Majmooa Qawanee-e-Islam by Dr. Tanzil-ur-Rahman (Qanun-e-Warathat (V) P. 1687, 1745 and 1947.
Thirdly: That entitlement as Wali of Qisas is determined by the personal law of the victim; that under the provision of the Muslim Family Laws Ordinance, 1961, the legal heirs of Mst. ,Aamna and Habib Ullah and so the settlement of offence by them will bring an end the right of Qisas. Reliance was placed on the judgment of Federal Shariat Court dated 5 January, 2000 passed in Shariat Petition No. 29- 1/93.
5. The renly, as submitted by learned counsel for the complainant, may be conveniently described as below:- Firstly: Islam lays stress on inviolability of human blood and states in Verse No. 92, Sura Al-Nisa of the Holy Qur'an. He referred to the Translation of Verses by A. Yousaf Ali at page 209 which is as follows:- #tbs it is ordains that he #the "Never should a believer KHI a Believer; but (If it so happens) by mistake, (compensation is due: If one (so) kills a Believer, Should free a believing slave, And pay compensation To the deceased's family unless they, remit it freely.
If ' the deceased belonged.
To a people at war wit!: you, and he was a believer, The freeing of a believing slave (Is enough). If he belonged'
To a people with whom You have a people with whom * You have a treaty of mutual t Alliance, compensation should (92)
Be paid to his family, And a believing slave be freed.
For those who find this Beyond their means, (is prescribed)
A fast for two months Running; by way of repentance To Allah: for Allah hath All knowledge and all wisdom." (92)
If a man kills * a Believer intentionally, his recompense Is Hell, to abide therein (For ever): and the wrath And the curse of Allah Are upon him, and a dread full penalty Is prepared for him." (93)
Reliance was also made to the following sayings of Holy Prophet (may peace be upon him):- Secondly: Islam prescribes the right of Qisas for act of manslaughter. According to him, .The right of Qisas of aggrieved person/legal heirs of murdered person is, in fact a guarantee for peace in the society. The right of Qisas, according to learned counsel, was also accompanied with right of Afw on the premises of compensation or without compensation. Continuing her contended that the right of Afw of Qisas was akin to property rights, was so heritable and devolves upon the legal heirs of deceased according to personal laws of their inheritance. According to him, the legal heirs/Wali- e-Maqtool were those who were entitled to inherit ' Diyat' or compensation rhe placed reliance upon the meaning of expression of Wali as given in Al-Musjid, page 1397, Column No. 3.
Similarly, according to another Arabic to Urdu Dictionary/Fatah-ul-Lughat, Wali is defined as \s O {{ URDU TEXT }} It was so contended that Muslim Jurisprudence does not discriminate between the minor and major Wali- e-Maqtool. Whatever is prescribed is that Wali-e- Maqtool have a right to condone the offence of felon. This right only enures to those persons who are entitled to inherit under the provisions of Muslim Law of Inheritance. Reference was made to Kitab AI-Fiqh-alamzahib Al-arb'ah by Abdul Rehman Al-Jaziri Vol. 35, P. 491 to 494, 506 to 508.
Thirdly: That Muhammad Jamaal and Mst. Raheela are not the legal heirs of Mst. Aamna Bibi on a simple ground that was survived by one husband, one son and six daughters and so according to principles of exclusion, Muhammad ]amaal and Mst. Raheela were not entitled to inherit her legacy. Similarly, it was argued that Habib Ullah, on his demise, was survived by Bismillah (widow).
Mst. Shaheen (daughter), Mst. Perveen (daughter) and Mst. Ghulam Fatima (sister), Mst. Raheela (granddaughter), Mst. Shabnam, Mst. Saima, Mst. Saira, Mst. Sumaira and. Mst. Reema (grand- daughters) and Imran (grand-son). According to learned counsel the grand-son and grand- daughters were not entitled to inherit from the legacy left by Habib Ullah. On the basis of above circumstances it was stressed that neither the legal heirs of Mst. Nasreen were entitled to inherit from the legacy of Mst. Aamna Bibi nor Habib Ullah and so they have no right whatsoever to condone on behalf of Aamna and Habib Ullah.
6. From the foregoing contentions of the parties, the following questions emerge for consideration:-
(1) Whether the legal heirs of Mst. Nasreen are legal heirs of Mst. Aamna Bibi and Habib Ullah and so are entitled to condone/Afw the act of Muhammad Jabbar?
(2) Whether Muhammad ]abbar was disentitled to inherit from the legacy of Mst. Aamna Bibi, Habib Ullah and so. His legal heirs are also not entitled to right of Afw with regard to intentional murder of Aamna Bibi and Habib Ullah?
7. Before we proceed to answer the above-noted questions. We feel it is expedient to examine the relevant Injunctions of Islam as embodied in Holy Qur'an and opinions of various doctors of Islam on the concept of Qisas and power of Wali-e-Maqtool to condone/Afw. The first verse, in time, is 33 as contained in Sura Bani Israeel, Paara No. 15 of the Holy Qur'an. It reads as follows:- (English translation from the Holy Qur'an, Commentary/Translation by A. Yousuf Ali).
Nor take life-which Allah Has made sacred-except For just cause. And if Any one is slain wrongfully, We have given his heir Authority (to demand Qisas or to forgive); but It him Not exceed bounds in the matter Of taking life: for the Is helped (by the law).
There are two Holy verses No. 178 and 179 occurring in Sura Al-Baqarah. These verses read as follows:- "O ye who believe!
The law of equality Is cases of murder: The free for the free, The slave for the salve #tbs the #the The woman for woman.
But if any remission Is made by the brother Of the slain, then grant Any reasonable demand. And compensate him With handsome gratitude; This is a concession And a mercy From your Lord, After this whoever Exceeds the limits Shall be in grave penalty. (178)
In the law of Equality There is (saving of) Life To you, O ye men of understanding That ye may Restrain yourselves." (179)
The fourth and last Verse is 45 occurring in Surah Al-Maidah in Paara No. 5. It is as follows:- , "We ordained therein 'for them: ' Life for life, eye for eye, Nose for nose, ear for ear, Tooth for tooth, and wounds equal for equal.' But if Any * one remits the retaliation By way of charity, it is An act of atonement for himself.
And if any fail to judge By (the light of) what Allah #tbs also' J' ^ orJUili ^ ^SoJ ,li #the Hath revealed, they are (No better than) wrongdoers." {{ URDU TEXT }}
7. Sura Bani Israeel, according to consensus, is Mekkan Sura and was revealed before Hijrah. So it is first in line. It enjoins strict limitation on the right of wronged to take a life for life, It postulates the right of Qisas. It recognizes that a person whose, life is taken, his legal heirs have a right to demand the taking of life of wrong-doer/murder/assassin. This right is in consonance with interactions of instinctual human behaviours and satisfies the instincts of vengeance, retaliation and retribution.
Briefly speaking, it is a right of retribution. This right prescribes that the wrong-doer has to pay for his wrong; the sufferings, which he undergoes, restores the effect of injuries caused to wronged.
This can be a satisfaction by way of retaliation, It is a message to all those who are inclined to commit wrongs. They system of Qisas, so prescribed by Holy scripture, keeps and ensures the balance and peace in the society and engenders the doctrine of fairness, tranquilly and harmony, It saves the society from acts committed by wrongdoers. The first verse also contain a divine commandment that in - matter of Qisas the legal heirs of deceased/assassinated/wronged person should not cross the limits and keep the balance while taking Qisas. The second verse/178, occurring in Surah Al-Baqarah states that Wali-e- Maqtool are vested with the power to condone/Afw. The expression used for Wali-e-Maqtool is "Akhi" which literally means brother'. No had and fast definition of this expression is provided in Holy Qur'an. This has been explained by Holy Prophet (may peace be upon him) with slight variation, that 'Akhi' means Wali-e-Maqtool and right of Qisas is* their proprietary right. Since both the parties admittedly follow Fiqah Hanfi, we find it is necessary to quote from a High Authority i.e. Badai-AI-sanai compiled by celebrated Imam Kaasani at page No. 571. {{ URDU TEXT MISS }} From the foregoing examination, it is thus dear (1) that Islam prescribes the right of Qisas which is retributive in nature, satisfies the element of deterrent and disabling theories of criminal jurisprudence. It is beautiful amalgamation of all these theories. It is blessing for making and humanity. It is the right of wronged to be put in the place where wrong-doer has put him. This is, in short, the right of legal heirs of wronged. It is the right of Wali-e-Maqtool/his legal heirs; (2) that this right is compoundable. Wali-e-Maqtool have right to compound/condone/Afw on the payment of compensation/Diyat or without such compensation in lieu of pleasure of God Almighty on the day of resurrection; (3) that this right is like a property and heritable and is excusable by the legal heirs.
Resultantly, this right accrues to those legal heirs who are entitled to inherit the legacy of the deceased/wronged persons according to rules of Muslim Inheritance which are applicable to them in the matter of devolution of legal estate left by the deceased; (4) that the rule of exclusion i.e. Nearer in degree excludes the more remote. The rule of priority of blood-tie and the principle of tasib do apply in the case of Qisas/Diyat/Afw; (5) that the right of Afw is to be exercised in demeanour which is free from duress, coercion and manipulation. This is to be used in view of seeking the pleasure of God Almighty and for no other, affirmation. The legal heirs are not exceeded the reasonable limits and so the responsibility of the murderer/wrong-doer.
8. Applying these principles to the facts and circumstances of the case, it is thus clear that Mst.
Aamna Bibi, sister of Mst. Nasreen was survived by husband, son and six daughters. Muhammad Jamal and Mst. Raheela are not entitled to inherit from her legacy. Therefore, we are clear in mind that the aforesaid minor legal heirs of Mst. Nasreen as well as of murderer are not entitled to condone the murder of Mst. Aamna Bibi. Similarly, Habib Ullah was survived by Bismillah (widow), Mst. Shaheen and Mst. Parveen (daughters) and Ghulam Fatima (sister). The legacy left by Habib Ullah will devolve upon his widow, two daughters and sister. Muhammad Jamal and Mst. Raheela will not be entitled to inherit from the aforesaid legal heirs. Therefore, the aforesaid legal heirs through their guardian cannot condone the murder of Habib Ullah. There is yet another aspect of the case. From the record, it appears that Muhammad Jamai and Mst. Raheela minors lived with Ghulam Haider, brother of Muhammad Jabbar. In the first instance, he moved an application for condonation of act of murder of Mst. Nasreen, Mst. Aamna and Habib Ullah. That this aspect was exposed by Bismillah, widow of Habib Ullah. Even the order was not communicated to the jail authorities and black warrant has not been issued. Up to this date. Therefore, said Ghulam Haider moved an application for being appointed as guardian litem of Mst. Raheela and Muhammad Jamal. On account of aforesaid circumstance, he moved another application for condonation of murder of Mst. Nasreen, Mst. Aamna and Habib Ullah. k is true that the minors Were Wali having a right to condone the offence on the payment of Diyat or without Diyat. Nevertheless he had been manipulating on behalf of legal heirs of Mst. Aamna and Habib Ullah. This definitely demonstrates the manipulation effort which is unknown to Muslim Jurisprudence. For the afore-stated reason, we find that these proceedings were based on mala fides as far as Mst. Aamna and Habib Ullah are concerned. Their legal heirs did appear before us and stated that they had been subjected to gruesome cruelty and wanted compensation. For the afore stated reasons, we find that this revision petition is totally devoid of merit. The order of the teamed Sessions Judge that the petitioners are not able to Diyat of Mst. Aamna and Habib Ullah is also unwarranted.
9. For the afore stated confusions, we partly accept this revision petition and find that the legal heirs of Mst. Nasreen deceased have no right to condone the murder of Mst. Aamna their aunt and Habib Ullah. The application filed by Ghulam Haider to the extent of aforesaid two murders is hereby rejected. Let this order be sent to the learned Triaf Court so as to proceed with issuance of black warrant in accordance with law.