' Syed Altaf Hussain Shah and Syed Mukhtar Hussain Shah sons of Syed Amir Haider Shah alongwith their brothers Noor Hussain Shah and Zulfiqar Haider Shah were accused of Commission of Qatl-i- Amd of Bahadar Shah and Fateh Haider Shah and also attempted murder of Abbas Ali Shah vide case F.I.R. No.95, dated 27-5-1991 under sections 302/324/ 34, P.P.C. At Police Station Dhuman, District Chakwal. All the four persons were sent up for trial and were accordingly tried by a learned A.S.J., Chakwal. Vide judgment dated 31-1-1993 the learned trial Court acquitted Zulfiqar Haider Shah while the remaining three persons were convicted under sections 302/34, P.P.C. And sentenced to death. They were also imposed a fine of Rs.20,000 each failing which to undergo two years R.I. Against this conviction and sentence the three convicts filed Criminal Appeal No.40 of 1993. It was heard by a learned Division Bench of this Court. Vide judgment dated 21-6-2001 this Court converted the sentence of Noor Hussain ' Shah into life imprisonment. The death sentence of Syed Altaf Hussain Shah and Syed - Mukhtar Hussain Shah was confirmed. I may further note here that in the said judgment it was clarified that Mukhtar Hussain Shah had committed the murder of Syed Bahadar Shah and Altaf Hussain Shah had committed the murder of Fateh Haider Shah. The .Death sentence was accordingly maintained on one count each. Cr.P.L.A. No.263 of 2001 was diSmissed by the Honourable Supreme Court of Pakistan on 20-3-2002.
2. On 30-10-2003 the present petitioners who are widow, son and daughter respectively of the said Fateh Haider Shah deceased filed an application before the learned Sessions Judge, Chakwal, stating that they have pardoned the said convict in the matter of murder of Fateh Haider Shah and they may be acquitted. This application was opposed by respondents Nos.3 to 7 who are the sons (respondents Nos.3 to 6) and daughter (respondent No.7) of Nadir Shah. They are the brothers and sister of the said Fateh Haider Shah. The matter was heard by a learned A.S.J., Chakwal, who vide order dated 27-12-2003 concluded that for purpose of section 345, Cr.P.C. In the matter of compounding the said offence, the said respondents and all other persons inheriting Nadir Shah and his wife shall be deemed to the legal heirs of the deceased Fateh Haider Shah and since they are not agreeable, the application was rejected.
3. Mr. Muhammad Amir Butt, Advocate, learned counsel for the petitioner (the said widow and the children of deceased Fateh Haider Shah) contends that Fateh Haider Shah died on 27-5-199.1 and on the said date he was survived by a widow, son and a daughter as also his parents and his estate accordingly stood vested in the said heirs the moment he died. After the death of Fateh Haider Shah and before the compromise with the widow and the children, the said parents died.
According to the learned counsel, notwithstanding the fact that the portion of the estate inherited by the parents might have formed part of the over all estate of the said Nadir Shah and his wife and have devolved upon all their children, the right vesting in Nadir Shah and his wife to compound the offence cannot be said to be part of the estate. He relies upon the judgment of the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of Wafaqi Hakoomat-e- Pakistan v. Awamunnas PLD 1991 SC 731. The precise contention is that so far as the deceased Fateh Haider Shah is concerned, his only heirs would be his widow and children and not his brothers and sisters.
4. Learned A.A.-G. Is of the opinion that since Diyat is payable with reference to the date of death of the deceased person, the estate will have to be traced and then brought down from the said date and on this principle the brothers and sisters of the deceased would be the legal heirs within the meaning of section 345, Cr.P.C.
5. Mr. Mahmood Akhtar Khan learned counsel for respondents Nos.3 to 7 also relies on the said judgment being cited by learned counsel for the petitioners to contend that Diyat or right to recover the same.Would form part of the estate of Nadir Shah and his wife and ats such his clients are also legal heirs of the deceased for the purpose of compounding of the said offence and in the absence of their agreement or consent the compromise cannot be effected. He further refers t o para.56 of the Mullas Muhamnaadan La' w to urge that the estate shall come down from the parents of the deceased and his brothers and sisters upon inheritiing the estate of their parents would also ir &ern the said right to Diyat.
6. I have considered the respective contentions noted above. Before I proceed further, I may note here the details of the said. Family of Nadir Shah, as per response to the query of the Court by the learned counsel present. Now Fateh Haider Shah was murdered and died on 27-5-1991. He was survived by his father Nadir Shah, mother Lalan Bibi, widow Ghulam Batool, son Syed Tanvir Haider Shah and daughter I.Jurta Batool. Nadir Shah died on 14-4-1993. He was survived by his widow Lalan Bibi, sons Ghulam Haider Shah, ,Arneer Hurssain Shah, Sagheer Hussain Shah, Sab7 Ali Shah and Abbas Ali Shah and daughters Ghulam Rubab, Ghulam Ruqia and Ghulam Zakia. The said Ghulam Haider Shah died in the year 1994, Mst. Ghulzem Rubab died in the year 1997 and Ghultam Ruqia died in December, 2002. All these persons are stated to be survived by their children. Of course, Lalan Bibi would have inherited the mother's share. This ladys died on 27-7-2003 and was survived by the said sons and daughter and 'the progeny of the pre-deceased children.
7. I may also further note here that the findings recorded by the learned A.S.J. That the punishment awarded to Syed Altaf Hussain Shah for committing murder of Fateh Haider Shah was so awarded by way of Tazir and further that the matter is governed by section 345 of Cr.P.C. Have not been seriously questioned before me and are further fully supported by the judgment of the Honourable Supreme Court in the case of Muhammad Saleem v. - The State PLD 2003 SC 612 cited by the learned. ASJ and similar view was taken by the Honourable Supreme Court in the case of Riaz Ahmad v. The State 2003 SCM R 1067.
8. Now the question which remains to be seen and which, of course, the learned ASJ has answered in his impugned order, is as to who would be the legal heirs of Fateh Haider Shah for the purpose of effecting a compromise and consequently compounding the evidence of Qatl-i-Amd committed by Syed Altaf Hussain Shah. Now, it will be seen that the learned counsel for the parties as also learned A.A.-G. Have argued the matter with reference to Diyat. Now Diyat to my mind is one of the punishments which may be awarded by way of Tazir as per section 299(L), P.P.C. Now it will be seen that punislpents for Qatl-i-Amd are prescribed in section 302, P.P.C. And Diyat is not one of the punishments which can be awarded under the said provision of law. I may note here that the matter in hand is not covered by section 308, P.P.C. Now there is a reference to Diyat in sections 309 and 310, P.P.C. Which, of course, deal with the matter of compounding or waiver of Qisas which is not the case here. Now, on the other hand, ' in the matter of Qatl Shibhi-Amd, Qatl-i-Khata and Qatl-bis-Sabab, sections 316; 319 and 322, P.P.C. Respectively prescribe the punishment of payment of Diyat -to be determined in terms of. Section 323, P.P.C. Again the offence committed by Syed Altaf Hussain Shah is not falling nnder any, of the said heads.
9. Now section 345, Cr.P.C. Provides for compounding of the said pffence.Andthe B conditions laid _down. 4re dfat the iiiirs of the victim may compound, with the permission of the Court the said offence. Now the proviso to section 381, Cr.P.C. Lays down in mandatory terms that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him even at the last moment of the execution of the sentence. Now the said section 345, Cr.P.C. Makes no reference at all to Diyat. Further upon a reading of section 345, Cr.P.C.
Alongwith the said proviso to section 381, Cr.P.C. It is apparent that till the execution of sentence of death a pardon can .Be granted to the convict or a compromise can be entered into with him by the heirs of the deceased in which eventuality the said sentence shall not be executed. Now in the said case being relied upon by both the parties PLD 1991 SC 731 the opinion of the Honourable Shariat Appellate Bench was expressed by Mr. Justice Maulana Muhammad Taqi Usmani. Now Mr. Mahmood Akhtar Khan has relied upon the following definition of " {{URDU TEXT}} by Allama Ibn-e- Abidin Shami quoted by his Lordship at page 742 of the report:-- {{URDU TEXT}} ' Now as I have stated above with reference to the several provisions of P.P.C. That in some cases of murder the law prescribes the punishment of Diyat and one of them is D Qatl-i-Khata. In such a case, to my mind without there being any intent on the part of an heir of the deceased (in the present case his parents) if in case !Of such a murder punishment of Diyat is awarded then that would form part of the estate of the said deceased's heir whether he had D received it or not.
However, this is not so in the present case. The other eventuality referred to in the said definition is that where the amount becomes payable because of compounding of Qisas which again is not the case here. Now the reliance of Mr. Muhammad Amir Butt on the said judgment is with reference to the observations of his Lordship which have been made after quoting the words of the Holy Quran and some works of the religious Scholars and also Ahadith of the Holy Prophet (p.b.u.h.).
Following Verse No.VII of Surat-un-Nisa has been quoted at page 741 of the said report:-- {{URDU TEXT}} ' After the said reference, his Lordship summed up the following conclusion:-- {{URDU TEXT}} ' Now applying the said test to the present case, it will have to be seen as to whether the said right to compound the said offence can be said to be the " or " ers " of Nadir Shah and his wife Lalan Bibi which could have devolved upon their children. It is nobody's case that Nadir Shah had exercised the said right and pursuant thereto had become entitled to recover some "{{URDU TEXT}} " from the said convict. I may note here that the deceased is said to be a Shia. At the time of his death he had children and parents who fell within the first class of heirs as per Shia Law and his brothers and sisters as also their descendants' stood excluded by the said heirs. Admittedly, his entire estate went to the parents and children, of course, the said widow who being a sharer was entitled to inherit alongwith the said category of heirs. No doubt the right to compound the offence vested in the said parents of deceased Fateh Haider Shah but as per the said dictum no amount became payable to the said parents in their life time in a manner to entitle them to make a claim for the same had they been alive.
10. For .The reasons stated above, I do hold that only the present petitioners i.e. The widow and the children of the deceased Fateh Haider Shah are the legal heirs for the purposes of section 345; Cr.P.C. The matter is remanded back to the learned ASJ, Chakwal, for further considering the case for grant of permission to compromise.
11. A copy of this judgment be remitted to the said learned Judge immediately.