' KHAWAMA MUHAMMAD SHARIF, M.---This judgment will dispose of Criminal Appeal No.886 of 2000 filed by Muhammad Khan and Muhammad Yousaf Bughio, appellants. Muhammad Khan, appellant has filed through jail separate Cr. Appeal No.28/M of 2000 challenging his conviction and sentence recorded against him. The conviction and sentence was recorded against both the convicts by Mudge, Special Court (STA) Lahore vide judgment dated 19-6-2000 as under:-- ' Muhammad Khan and Muhammad Yousaf Bughio:--
(i) Death with further direction to pay Rs.50,000 each as compensation, in default six months S.I.
Under section 302(b), P.P.C.
(ii) 10 years RI and to pay a fine of Rs.20,000, in default one year R.I. Each under section 324 read with section 34, P.P.C.
(iii) Seven years R.I. And arsh, twice on two charges under section 337-C, P.P.C.
(iv) Five years RI twice and to pay daman on two charges under section 337-F(vi), P.P.C. And
(v) Three years RI each and to pay arsh under section 337-A(ii), P.P.C.
' The benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellants.
' Criminal Revision No.559 of 2000 filed by the complainant for enhancement of sentence of Muhammad Khan and Muhammad Yousaf, convicts shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that Muhammad Iqbal, Lower Head Cosntable, Incharge Guards to Mr. Ali Sibtain Fazli, Advocate who was conducting the accountability cases as a Prosecutor, appeared before Muhammad Sharif SI and stated that on 30-4-1999 at about 9-00 p.m., he along with Muhammad Ali and Obaid Ullah FCs was present in the office of Mr. Ali Sibtain Fazli, Advocate situated at 30-Mall Mansion, Lahore when in the meanwhile Imran Aziz, Advocate along with his clerk Ghulam Mustafa, after finishing his office work, went down stairs to go to his home. Since the complainant was also relieved of his duty, he directed the other Police Officials to check the office and himself followed Imran Aziz to reach in the street where Imran Aziz was sitting in his car while his clerk Ghulam Mustafa was standing near the door of the car. The complainant further stated that in the meanwhile person armed with Klashnikov resorted to indiscriminate firing whereby Imran Aziz and his clerk Ghulam Mustafa were critically injured whereas the companion of the accused while armed with a fire-arm remained present with him. Sooner the complainant along with his companions reached the place of occurrence, the accused fled away. Both the injured were removed to hospital. It was also stated by the complainant that since the accused had fled away from the scene in the light of the bulb, so he could identify them, if they were brought before him.
' Ghulam Mustafa succumbed to the injuries in the hospital while Imran Aziz was sent abroad for medical treatment.
3. During the investigation of this case, Muhammad Khan accused of case F.I.R. No.171 of 1999 under Arms Ordinance registered with Police Station, Muslim Town, made disclosure about this case as well and thereafter, both the appellants were arrested and sent to judicial lock up for their identification. During the identification parade, both the accused were duly identified. Muhammad Khan accused led to the recovery of motor cycle and the Klashnikov used in the commission of the offence. Muhammad Yousaf got recorded his confessional statement under section 164, Cr.P.C.
Since Nadir Khan Magsi, Zulfiqar Mirza and Dr. Nisar could not be arrested, they were declared as POs. Both the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 34 witnesses in all. Then the learned A.P.P. Tendered in evidence report of the Forensic Science Laboratory, Exh.P.S.S., report of the Chemical Examiner Exh.P.T.T. And report of the Serologist Exh. P.U.U. And closed the case of the prosecution. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. However, after conclusion of the trial, the appellants were convicted and sentenced as stated above.
5. Learned counsel for the appellants submits that as far as deceased Ghulam Mustafa is concerned, all the legal heirs of the deceased have pardoned the appellants in the name of Almighty Allah so this Court should also accept that compromise. He further submits that so far as conviction and sentence for causing injuries on the person of Imran Aziz, the injured P.W. Is concerned, he does not press this appeal to the extent of appellants. Learned counsel submits that he would also not press the compromise between legal heirs of deceased Ghulam Mustafa and the POs namely Zulifqar Mirza and Dr. Nisar, Nadir Khan Magsi the 5th accused is still at large.
' It is submitted by learned counsel of the appellants that voluntary nature of the compromise has not only been verified by the learned Sessions Mudge but all the legal heirs of deceased Ghulam Mustafa have appeared before this Court and verified the compromise. According to learned counsel, the compromise has been arrived between the parties without any pressure, coercion or duress. Learned counsel has also referred to section 338-F, P.P.C. To submit that all the provisions of the Code shall be followed according to the Injunction of Islam. Further submits that as the appellants have been granted pardon for the murder of the deceased of the instant case, no conviction under the Qisas and Diyat Ordinance could have been recorded, so the provisions of section 311, P.P.C. Would not be attracted to the facts and circumstances of the present case. In support of his submissions, learned counsel has relied upon PLD 1991 SC 202; 1992 PCr.LM 1960; 1993 PCr.LM 166; 1997 SCM R 1307; PLD 1999 SC 178; 2000 PCr.LM 1116 and 2001 PCr.LM 64.
' On the other hand, Miss Yasmeen Sehgal, learned A.A.-G. Submits that a bare perusal of original heading of section 311, P.P.C. Would show that sentence and conviction can be awarded to a convict whose right of qisas has been waived/ compounded by legal heirs of the deceased. She has also drawn our attention to head note "M" of the judgment reported as 1997 SCM R 1307 to submit that section 311, P.P.C. Cannot be said to be redundant and that in fact the discretion lies with the Appellate Court, i.e. This Court, to invoke the provisions of section 311, P.P.C. After taking into consideration the over all facts and circumstances of the given case. Learned A.A.-G. Is mindful of the fact that no imprisonment can be awarded to a convict besides the conviction under Qisas and Diyat Ordinance but submits that in the present case, it has not been requested for award of additional sentence but for alternate sentence as provided under section 311, P.P.C.
' After having heard learned counsel for the parties at length on the point whether the appellant who have already been pardoned by legal heirs of the deceased can be awarded punishment under section 311, P.P.C. Or not and going through the precedents cited by learned counsel from both the sides we are of the view that the provisions of section 311, P.P.C. Are not applicable to the facts and circumstances of the present case. Twice before this Court and once before the learned Sessions Mudge, Lahore; legal heirs of deceased Ghulam Mustafa deceased have appeared to submit that they have no objection if the accused of this case are acquitted from the charge of .Murder of deceased and that they have also waived their right of qisas in the name of Almighty Allah. Cr. Revision No.559 of 2000 filed by Hikmatullah, father of deceased Ghulam Mustafa, for enhancement of sentence of the convicts has also been withdrawn today. We are thus satisfied with the voluntary nature of the compromise having been arrived at between the parties and are not inclined to record conviction and sentence against the appellants under section 311, P.P.C. So the notice issued to the convicts under the said section is withdrawn. Resultantly, both the appeals filed by Muhammad Khan and Muhammad Yousaf Bughio, convicts is accepted in terms of the compromise and pursuant thereof conviction and sentence recorded 'against them by the learned trial Court under section 302(b), P.P.C. Is set aside. The death sentence of both the appellants namely Muhammad Khan and Muhammad Yousaf Bughio is not confirmed and Murder Reference is replied in the negative. However, the conviction and sentences recorded under sections 324/34, 337-C, 337-F(vi) and 337-A(ii), P.P.C. And sentence in their default are maintained in toto. The benefit of section 382-B, Cr.P.C. Granted to the appellants by the trial Court shall remain intact.