2016 Y L R 2781
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ
FATEH DIN alias FATOO ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(S) 57 and Murder Reference No.(S) 14 of 2007, decided on 18th March,
2015.
Penal Code (XLV of 1860) ---
----Ss. 302(a)(b)(c), 304, 307, 308, 310, 331 & 338- E---Criminal Procedure Code (V of 1898),
S.345---Qatl -i-amd, qisas and diyat ---Appreciation of evidence ---Sentence, reduction in---
Compromise was arrived a t between the parties to the effect that the major legal heirs of the
deceased, had pardoned accused in the name of Almighty Allah ---Report of Trial Judge
confirmed that the compromise had been arrived for mutual harmony and without any coercion,
duress, pressure, compulsion, deception or threat and was entered according to the settled
principles of law ---Compromise with legal heirs of the deceased in case of death as Tazir, could
be considered as a mitigating factor for altering the conviction and awarding the lesser
punishment of life imprisonment instead of death---Sentence of death awarded to accused under
S.302(b), P.P.C., as Tazir, was altered, and accused was convicted and sentenced to suffer life
imprisonment with fine of Rs.50,000--- High Court, foll owing the rule of prudence and principle
of equity, left the question of payment of Diyat to the minor legal heirs of the deceased for
determination by the Trial Court---Accused, could approach the Trial Court as contemplated
under S.338- E, P.P.C., or coul d seek indulgence of the Trial Court for payment of Diyat amount
to minor legal heirs through instalments.
Ghulam Hussain v. The State NLR 1993 Criminal 203 and Mst. Khanum Jee v. The State
PLD 2005 Pesh. 62 rel.
Anwar -ul-Haq Chaudhry for Appellant.
Jameel Akhtar for the State.
Date of hearing: 26th September, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The Additional Sessions
Judge, Dera Allah Yar (the "trial Court"), vide judgment dated 17.05.2007 (the "impugned
judgment") has convicted the a ppellant Fateh Din alias Fatoo son of Naseer Khan under Section
302(b) of the Pakistan Penal Code 1860 (P.P.C.) and sentenced him to death as ta'zir. The
appellant preferred Criminal Appeal No.(S)157 of 2011 for his acquittal, while the learned trial
Court has sent Murder Reference No.(S) 14 of 2011 for confirmation of the sentence of death or
otherwise. Since common question of law and facts is involved, therefore, both the matters are
being disposed of by means of this common judgment.
2. Briefly stated f acts of the case are that on 06.07.2006, a case vide FIR No.07 of 2006,
under Section 302 of the Pakistan Penal Code, 1860 ("P.P.C.") Ex.P/1- A) was registered at
Police Station RD -298 of District Jaffarabad, by the complainant Essa Khan (PW -1). It was
alleged by the complainant that he is Bazgar of Nabi Bakhsh and resides at Goth Dhani Parta
along with his family members. They have buffalos and sell their milk etc. to Hotel Sardar
Hussain Tanwari at Hair Din. On the fateful day, as usual his brother was car rying milk to Hair
Din on his buffalo cart, the complainant and his cousin Ali Dost at some distance, were going to
Hair Din on foot in regard with their personal affair. When they reached near Muhammad Moosa
cemetery, all of a sudden the appellant appeared from behind the trees having a shotgun in his
hand and challenged his brother that he would not be spared today. As soon as the complainant's
brother disembarked from the cart, the appellant opened fire upon him. When the complainant
and his cousin rushe d to rescue the deceased Moosa, the appellant threatened them that if they
come forward they will also meet the same fate. Thereafter, the appellant by waiving, the
shotgun escaped from the scene. The complainant and his cousin could not do anything being
empty handed. Motive behind the occurrence was alleged to be a family dispute. Consequently,
the aforesaid FIR was registered.
3. After registration of the FIR (Ex.P/l- A), investigation of the case was entrusted to PW -7
Abdul Shakoor, Sub- Inspector (SI), w ho, along with other police employees as well as the
complainant, went to the place of occurrence, found the dead body of deceased Muhammad
Moosa, prepared inquest report (Ex.P/7- K), inspected the site on the pointation of the
complainant, prepared site inspection memo (Ex.P/2- b), prepared the site sketch (Ex.P/7- J),
produced the Forensic Science Laboratory report of blood- stained earth (Ex.P/7 -N) and firearms
expert report of the shotgun and empty shell (Ex.P/7- P), took into possession the blood- stained
earth vide (Ex.P/2- C), took into possession the empty shell of 12 bore vide memo (Ex.P/2- D),
prepared the disclosure memo of the appellant (Ex.P/3- E), prepared sealed parcel of the pellets
and blood stained clothes (Ex.P/4- F), took into possession the shotgun No.268618 vide memo
(Ex. P/5 -G) and prepared incomplete challans (Ex.P/7- L and Ex.P/7- M) and supplementary
challan (Ex.P/7 -Q).
4. On the stated allegation, charge was framed and read over to the appellant, to which he
pleaded not guilty and claimed trial . The prosecution, in order to substantiate the accusation,
produced seven witnesses. PW -1 Essa Khan is complainant of the case, who exhibited FIR as
(Ex.P/1 -A). PW -2 Ali Dost, is an eye -witness, who was accompanying the complainant, when
the incident took place. PW -3 Head Constable Mehrab, is witness to the disclosure memo of the
appellant (Ex.P/3- E). PW -4 Mehboob Ali Constable is witness to the recovery memo of blood
stained clothes and two pellets (Ex.P/4- F). PW -5 Head Constable Haibat Khan is the witnes s of
recovery of shotgun which was taken into possession vide recovery memo (Ex.P/5- G). PW -6 Dr.
Mazhar Ali Khosa conducted the postmortem examination of the deceased and produced post -
mortem examination report (Ex.P/6 -H) and PW -7 Abdul Shakoor, SI, is the investigating officer
of the case. Then the prosecution closed its side.
5. In his examination under Section 342 of the Code of Criminal Procedure 1898 (Cr.P.C.),
the appellant denied and controverted each and every allegation of fact leveled against him by
the prosecution and professed his innocence. However, he neither made any statement on oath
under Section 340(2) of the Cr.P.C, nor produced, any witness in his defence.
6. This appeal along with Murder Reference were admitted to regular hearing, meanw hile
on 23.06.2011 the appellant through his counsel submitted an application bearing C.M.A. No.Nil
of 2011 under Section 345, Cr.P.C. to the effect that the major legal heirs of the deceased have
entered into compromise with the appellant and have pardone d him in the name of Almighty
Allah on which the report of the learned Additional Sessions Judge Dera Allah Yar was called
for. Whereafter the learned trial judge sent the report with regard to the compromise, along with
the statements of the legal heirs o f the deceased confirming the contents of compromise. The
report of the learned trial judge confirmed that the compromise has been arrived at between the
parties for mutual harmony and without any coercion, duress, pressure, compulsion, deception or
threat coupled with the fact that it is according to the settled principles of the law.
The inquiry report in respect of compromise was received and was taken on record vide
this court order dated 15.09.2011. In the instant case initially Mr. Shah Muhammad Jatoi,
Advocate was representing the appellant and after the receipt of inquiry report, on 03.11.2011
Mr. Amjad Hussain Khoso, Advocate entered appearance on behalf of the appellant and
contended that the appellant is ready to deposit the share of Diyat amount of minor legal heirs of
the deceased. He stated that the share of minor legal heirs has been calculated to the tune of
Rs.600,000/ - (six hundred thousand) and the appellant is ready to deposit the same by means of
"Defence Saving Certificates" in favour o f minor legal heirs namely Mst. Jameela, Mst. Bailla,
Mst. Meeran Mai and Mst. Sumaira Mai and also sought directions to the Manager National
Savings Center Dera Murad Jamali to do the needful. The order was passed accordingly but
thereafter two consecutiv e adjournments were sought. On 10.01.2013 C.M.A. No.(s) 07 of 2012,
which was already pending was pressed into service and permission was sought to mutate the
land of one Bhagoi son of Alam in favour of the aforesaid minor legal heirs of the deceased but
the request was turned down as the correct value of proposed property was not assessable.
7. Thereafter, matter remained pending and there was no appearance on behalf of the
appellant. On repeated notices of this court the appellant made a request for provi sion of a
counsel on state expenses. Therefore, vide order dated 12.09.2013, Mr. Anwar -ul-Haq Chaudhry,
Advocate was appointed as counsel for pauper appellant. After three consecutive hearing, on
30.01.2014 counsel for pauper appellant appeared before the court and requested for
adjournment on the ground that some land has been transferred in the name of the appellant,
verification and valuation whereof has been solicited from the Revenue Authorities for onward
transfer in favour of the legal heirs of decea sed in lieu of Diyat amount. Thereafter on each and
every date of hearing adjournment was sought to do the needful. Till the last date of hearing
learned counsel kept seeking adjournment for the above stated reason. However, subsequently
the learned counse l apprised the court that the value of the said property is not equivalent to the
Diyat amount. Finally on 26.09.2014 the learned counsel informed that the pauper appellant is in
jail and no one on his behalf has so far contacted him to address the issue, therefore, the case
may be decided on basis of available record.
8. In view of the statement made by the learned counsel for pauper appellant, we ourselves
have gone through the record of the case, perusal whereof manifests that in the instant case the
appellant has been awarded death sentence under Section 302(b), P.P.C. as Ta'zir. The question
of moot importance is that what shall be the quantum of sentence, when the legal heirs of the
deceased have entered into a compromise and pardoned the appellant in the name of Almighty
Allah and no more want to proceed with the prosecution for murder charge of their predecessor -
in-interest.
The charge of Qatl -i-amd is punishable under Section 302(a) (b) and (c) of P.P.C.,
whereas the penalty of death as Qisas is pro vided under section 302(a), P.P.C., which postulates
that the penalty of death as Qisas shall be awarded, when the requirement of Section 304, P.P.C.
are available. While, section 302(b), P.P.C. provides the penalty of death or imprisonment for
life as Ta' zir, having regard to the facts and circumstances of the case, shall be awarded if the
proof in either of the forms specified in Section 304, P.P.C. is not available.
9. The question of paramount importance would be that when a penalty of death cannot be
enforced as Qisas, in case of subsection (b) of Section 307, P.P.C. 'when any Wali of the
deceased voluntarily and without duress, to the satisfaction of the court, waives the right of Qisas
under Section 309, P.P.C. or compounds under Section 310, P.P.C.'.
The referred provision of Section 307, P.P.C. clearly manifests that if anyone of the legal
heirs entered into compromise the qisas for Qatl -i-amd would not be enforceable. The affect of
this provision has been provided in sub- section (2) of Section 309, P.P.C., which lays down that
where a victim has more than one Walis, anyone of them could waive his right of qisas and the
wali who did not so waive his right of qisas would be entitled to his/her share of Diyat.
Although, the provisions of Section 308, P .P.C. are not strictly attracted to the facts of the instant
case, yet, subsection (2) of the said Section does provide a guideline in dealing with such like
cases and it envisages that where an offender was not liable to qisas and was thus liable to
payme nt of Diyat he could be punished with imprisonment by way of Ta'zir.
10. In the instant case, the legal heirs of the deceased have entered into compromise and have
forgiven the appellant and sought permission of the court to compound the offence. That too,
when the appellant was also ready to pay the share of minor legal heirs in lieu of Diyat amount
and on account of his weak financial position was ready to transfer the immoveable property in
their favour, but unfortunately the value of the property was not according to the volume of
payable Diyat amount though the explanation provided under Section 310, P.P.C. provides that
compensation can be made according to Sharia, in terms of cash or in kind or in the form of
moveable or immoveable property. It may be clarified here that it needs no reiteration that all the
referred provisions from Sections 304, 307, 309 and 310, P.P.C. are in respect of cases of Qisas
only, which is based upon the Quranic principle of Qisas.
11. Though in the instant case the appellant has been failed to make the payment of Diyat
amount to minor legal heirs of the deceased, therefore, at the most it can be presumed that
minors have not entered into compromise as yet but keeping in view the afore r eferred the
Islamic principles of Qisas and Diyat law the appellant would not be liable to be hanged by the
neck till death and the affect of the compromise can easily be considered as mitigating factor for
awarding him the lesser punishment. Reference in this behalf is made to the case of Ghulam
Hussain v. The State (NLR 1993 Criminal 203) and Mst. Khanum Jee v. The State (PLD 2005
Peshawar 62).
In view of above discussion, we are of the considered opinion that compromise with legal
heirs of the deceased in case of death as ta'zir can be considered as a mitigating factor for altering
the conviction and awarding the lesser punishment of life imprisonment instead of death.
12. Thus, the sentence of death awarded under section 302(b), P.P.C. as Ta'zir is here by
altered and the appellant Fateh Din alias Fatoo son of Naseer Khan is convicted and sentenced
under Section 302(b) of the P.P.C. to suffer life imprisonment with a fine of Rs.50,000/ - (Rupees
fifty thousand only) in lieu of compensation to the legal hei rs as envisaged under Section 544- A,
Cr.P.C. or in default whereof to further undergo six (06) months SI. The benefit of Section 382- B
of the Cr.P.C. shall also be extended in his favour.
However, following the rule of prudence and principle of equity, we intentionally, leave
the question of payment of Diyat amount to the minor legal heirs of the deceased for
determination by the trial court and the appellant may approach the trial court as contemplated
under Section 338- E, P.P.C., or may seek indulgence of the trial court for payment of Diyat
amount to minor legal heirs through instalments as envisaged under Section 331, P.P.C., or in
alternative gets permission to transfer any moveable or immoveable property in the name of
minor legal heirs of the deceased, if at any subsequent stage he could arrange so.
Office to send the papers of compromise deed and the inquiry report in respect of
compromise along with original record of the case to the learned trial court. In case the
convict/appellant moves any such application, same shall be decided strictly in accordance with
law, as enumerated under sections 338- E and 331, P.P.C. and if the application is accepted, the
convict/appellant shall be set at liberty, if not required in any other case, subject to furnishing
surety equivalent to payable Diyat amount, if necessary.
With the aforesaid modification in the conviction and sentence, the appeal is disposed of
and the murder reference is answered in negative.
HBT/55/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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