02/04/2021 1997SCMR1307

1997SCMR1307

[Supreme Court of Pakistan]

Present: Ajmal Mian, Saiduzzaman Siddiqui, Fazal Ilahi Khan and Muhammad Bashir
Khan Jehangiri, JJ

Sh. MUHAMMAD ASLAM and another‑‑‑Petitioners

versus

SHAUKAT ALI alias SHAUKA and others‑‑‑Respondents

Criminal Petitions for Leave to Appeal Nos. 137‑L and 140‑L of 1994, decided on 15th April,
1997.

(On appeal from the common judgment dated 27‑3‑1994 of the Lahore High Court, Lahore, passed
in Criminal Appeal No. 245 of 1991 and Criminal Revision No. 251 of 1991).

Per Ajmal Mian, J.‑‑‑

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 299‑‑‑"Diyat", "Qatl", "Qisas" & "Tazir"‑‑‑Definitions.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Qatil‑i‑Amd‑‑‑Punishment‑‑‑Interpretation.

(c) Penal Code.(XLV of 1860)‑‑‑

‑‑‑‑S. 305‑‑‑"Wali"‑‑‑Definition.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 306‑‑‑Qatl‑i‑Amd not liable to Qisas‑‑‑Interpretation.

(e) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 307‑‑‑‑Cases in which Qisas for Qatl‑il‑Amd is not enforceable.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 308‑‑‑Punishment in Qatl‑i‑Amd not liable to Qisas‑‑‑Principles.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 309‑‑‑Waiver (Afw) of Qisas in Qatl‑i‑Amd‑‑‑Principles.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 310‑‑‑Compounding of Qisas (Sulh) in Qatl‑i‑Amd‑‑‑Principles.

(i) Penal Code (XLV of 1860)‑‑‑

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‑‑‑‑S. 311‑‑‑All the Walis not waiving or compounding the right of Qisas‑‑ Punishment as
Ta'zir‑‑‑Principles.

(j) Penal Code EXLV of 1860)‑‑‑

‑‑‑‑S. 311‑‑‑Expression "Fasad‑fil‑arz" used in the section ‑‑‑Connotation‑‑ Effect and

scope.‑‑[Words and phrases].

(k) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 338‑E‑‑‑Waiver or compounding of offences‑‑‑Principles.

(l) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 338‑F‑‑‑Interpretation of Chap.XVI, Penal Code‑‑‑Guidelines.

(m) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 345 [as amended by Criminal Law (Second Amendment) Ordinance (VII of
1990)‑‑‑Interpretation of S.345, Cr.P.C. (as amended).

(n) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 309, 310, 311, 338‑E & 338‑F‑‑‑Criminal Procedure Code (V of 1898),
S.345‑‑‑Qisas‑‑‑Waiver and compounding‑‑‑Principles‑‑‑If the victim has more than one Wali and
if any one of them waives his right, the right of Qisas cannot be enforced ‑‑‑Wali who has not
waived or has not entered into Badl‑e‑Sulh will be entitled to receive his share of Diyat subject to
S. 311, P.P.C.‑‑‑Where, however, accused person has been awarded sentence for murder as Tazir
and not Qisas, the legal heirs cannot waive or accept Badl‑e‑Sulh‑‑‑Sentence awarded for murder
as Tazir can be compounded by all the legal heirs of the deceased with permission of the Court
concerned.

If the victim has more than one Wali and if any one of them waives his right, the right of Qisas
cannot be enforced. 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., under which it has been
provided that notwithstanding anything contained in section 309 or section 310, where all the Wali
do not waive or compound the right of Qisas or keeping in view the principle of Fasad‑fil‑arz, the
Court may in its discretion having regard to the facts and circumstances of the case, punish an
offender against whom right of Qisas has been waived or compounded with imprisonment of either
description for a term which may extend to fourteen years as Ta'zir. Subsection (2) of section 309,
proviso to section 309(2), P.P.C. lays down that the Wali, who does not waive his right of Qisas,
shall be entitled to his share of Diyat. There is no doubt that section 338‑E, P.P.C., provides that
subject to the provisions of this Chapter and section 345, of Cr.P.C., all offences under this Chapter
may be waived or compounded and the provisions of sections 309 and 310 shall mutatis mutandis
apply to the waiver or compounding of such offences. The proviso to the same lays down that
where offences have been waived or compounded, the Court may by its discretion having regard to
the facts and circumstances of the case acquit or award Ta'zir to the offender according to the
nature of the offence. The above section is to be interpreted in the light of the guideline for
interpretation provided in section 338‑F, which enjoins that the Court, while interpreting and
applying the provisions of .the Chapter in question of the P.P.C., and in respect of matters ancillary
or akin thereto, shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and
Sunnah. This provision does not nullify the well‑settled proposition of law that in case where an
accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs

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cannot waive or accept Badal‑i‑Sulh. However, in view of the amendment in section 345(2),
Cr.P.C., the sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the
deceased with the permission of the Court concerned.

Safdar Ali and others v. The State PLD 1991 SC 202; Manzoor Hussain and 4 others v. State 1994
SCMR 1327; Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan
Khan PLD 1989 SC 633 and Tafseer Maarful Qur'an by Moulana Mufti Muhammad Shafi ref.

(o) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 309 & 310‑‑‑Criminal Procedure Code (V of 1898), S.345(2)‑‑‑If an accused person has
been awarded death sentence as Qisas, the same can only be undone under S.309 or 310,
P.P.C.‑‑‑If, however, the sentence is awarded by way of Ta'zir the Court has the power to grant
permission to legal heirs of the deceased and the accused to compound the offence under S.345(2),
Cr.P.C. which will result in acquittal under S.345(6), Cr.P.C. if the compromise is accepted by the
Court.

Abdul Haque v. State and another PLD 1996 SC 1 ref.

(p) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 309 & 310‑‑‑If a case is covered by S. 302(a), P.P.C. and death sentence has been
awarded as Qisas, the Court cannot substitute the death sentence with that of imprisonment for
life‑‑‑In such a case the Wali of the deceased involved can either waive Qisas under S. 309. P.P.C.
or he can compound under S. 310, P. P. C.

(q) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 309‑‑‑If the mother of the deceased has not joined the compromise and High Court
has altered the death sentence into imprisonment for life which could be awarded as Ta'zir and not
as Qisas, S. 309(2), P.P.C. cannot be pressed into service‑‑‑Application for compromise, in such
circumstances will be rejected.

Per Muhammad Bashir Khan Jehangiri. J. agreeing with Ajmal Mian, J.‑‑

(r) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Composition of the offence under S.

302 is made permissible if all the heirs of the victim have consented.

Nisar Ahmad v. State 1994 PCr.LJ 1587 approved.

(s) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑.Ss. 302 & 309(2)‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑ Composition of

offence‑‑‑All the heirs of the victim excepting his mother had compromised with the
accused‑‑‑Effect‑‑‑Case against accused under S. 302, P.P.C., held, could neither be compounded
nor provision of S. 309(2), P.P.C. could be pressed into service.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court for Petitioner (in Cr. Petition No. 137‑L of
1996).

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for
Petitioner (in Cr. Petition No. 140‑L of 1996).

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Dr. Khalid Ranjha, Advocate‑General Punjab, Asif Saeed Khosa, Advocate Supreme Court as
Amicus curiae and Raja Qureshi, Advocate‑General, Sindh on Court's Notice.

Date of hearing: 5th March, 1997.

JUDGMENT

AJMAL MIAN, J. ‑‑‑By this common judgment, we intend to dispose of the above two petitions
for leave in which notices were ordered to be issued on 30‑5‑1995 to the learned Attorney‑General
for Pakistan, the learned Advocates -General of all the Provinces, M/s. Dr. Khalid Ranjha and Asif
Saeed Khan Khosa as amicus curiae to assist the Court, and to the respondents.

2. The brief facts are that Shaukat Ali alias Shauka.‑(who is petitioner in Criminal Petition No.
140/L of 1994) was convicted and sentenced under section 302, P.P.C. to death with a fine of
Rs.30,000 and in default to undergo three years' R.I. It was also ordered that if the amount of fine
was recovered, half of it was to be paid to the legal heirs of the deceased. The other three
co‑accused, namely, Rafaqat Ali, Sarfraz alias Goga and Allah Ditta, who were tried with the
convict Shauka, were acquitted. Shaukat Ali alias Shauka filed an appeal in the Lahore High Court
(Criminal Appeal No.245 of 1991), whereas the complainant, Sh. Muhammad Aslam (who is the
petitioner in Criminal Petition No.137/L of 1994) filed Criminal Revision No.251 of 1991 against
the acquittal of aforesaid co‑accused. The High Court altered the death sentence of Shaukat alias
Shauka to life imprisonment and dismissed the aforementioned Criminal Revision filed by the
complainant. Thereupon, the above two petitions for leave to appeal were filed.

3. Shaukat Ali alias Shauka filed an application before this Court alleging that the legal heirs of the
deceased involved had compromised with him. The deceased Muhammad Islam had left behind the
following legal heirs:‑‑‑

(i) Mst. Ramzan Bibi ‑ mother;

(ii) Mst. Bilqees Bibi ‑ widow
(iii) Mst. Ulfat Bibi ‑ daughter (15 years)
(iv) Asad Butt ‑ son (11 years);
(v) Mst. Naushaba ‑ daughter (10 years)
(vi) Mst. Kiran ‑ daughter (7 years);
(vii) Chand Butt ‑ son (5 years).

4. The matter was referred to the District and Sessions Judge, Gujrat, for report as to the
genuineness of the above compromise. He recorded the statements of Mst. Ramzan Bibi, Mst.
Bilqees Bibi, Fida Hussain and Syed Ibrar Hussain (marginal witnesses to the compromise deed),
Muhammad Younis, Sub- Inspector, S.H.O. Police Station City, Jalalpur Jattan, and Mst. Ulfat
Bibi, the daughter of the deceased. After that, the learned District and Sessions Judge, Gujrat,
submitted his report to this Court stating therein that Mst. Ramzan Bibi, the mother of the
deceased, had refused to compromise the case. However, the widow of the deceased for herself as
well as on behalf of the aforesaid minor children had agreed to the compromise. The shares of
Diyat amount of minors as well as of the widow amounting to Rs.2,03,000 was also deposited with
the Assistant Registrar of this Court at Lahore.

5. When the above petitions for leave came up for hearing on 30‑5‑1995, the learned counsel for
the convict Shaukat Ali alias Shauka referred to subsection (2) of section 309 of the Pakistan Penal
Code, 1860 (Act XLV of 1860), hereinafter referred to as the P.P.C., and contended that on that
analogy the legal heirs, who do not agree to the compromise, shall be entitled to their shares of
Diyat.

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6. The Bench of this Court which heard the aforementioned petitions was of the view that the said
petitions involved the questions, as to whether the principle of section 309, P.P.C. could be applied
to a case where punishment was awarded by way of Ta'zir, or whether the case under section 302,
P.P.C. could be compounded if all the heirs did not agree to the compromise keeping in view the
provision of section 345 of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter
referred to as the Cr.P.C. In the above factual background, the aforesaid notices were ordered to be
issued.

7. When the above petitions for leave came up for hearing on 5‑3‑1997, Dr. Khalid Ranjha had
appeared in the capacity of Advocate‑General, Punjab. Mr. Raja Qureshi appeared as the
Advocate‑General, Sindh. Both the learned Advocates‑General contended that under subsection (2)
of section 309, P.P.C., it has been provided that where a victim has more than one Wali, any one of
them may waive his right of Qisas and the proviso thereof provides that the Wali who does not
waive his right of Qisas, shall be entitled to his share of Diyat. According to them, the above
provision is also applicable where a Court awards sentence for a murder as Ta'zir in view of the
provisions of section 338‑E, P.P.C. and section 345, Cr.P.C. Dr. Khalid Ranjha further contended
that since the aforesaid provision of subsection (2) of section 309, P.P.C. is a beneficial provision
for the convicts, its interpretation should be liberal as to include the sentence awarded for murder
as Ta'zir particularly keeping in view that under clause (b) of section 302, P.P.C., the Court has
power to award death sentence or imprisonment for life as Ta'zir having regard to the facts and
circumstances of the case if the proof in either of the forms specified in section 304 is not
available, or under clause (c) thereof, the Court can award imprisonment of either description
which may extend to twenty‑five years, where according to the Injunctions of Islam the
punishment of Qisas is not applicable. Messrs Raja Muhammad Ibrahim Satti and Hassan Ahmad
Khan Kanwar supported the above arguments of Dr. Khalid Ranjha.

8. On the other hand, Mr. Asif Saeed Khan Khosa, who had appeared as amicus curiae, had urged
that subsection (2) of section 309, P.P.C. could not be pressed into service where the Court awards
sentence to an accused person for murder as Ta'zir. To reinforce his above submission, he referred
to the judgments of this Court in the case of Safdar Ali and others v. The State PLD 1991 SC 202,
in the case of Javaid Masih v. The State (1993 SCMR 1574) and in the case of Manzoor Hussain
and 4 others v. The State (1994 SCMR 1327). He also highlighted the factum that the various High
Courts have approached the above question differently by referring to the relevant case law. .

9. Before dealing with the above contentions of the learned counsel, it may be pertinent to mention
that the Shariat Appellate Bench of this Court in the case of Federation of Pakistan through
Secretary, Ministry of Law and another v. Gul Hasan Khan (PLD 1989 SC 633) has declared the
following provisions of the P.P.C. and Cr.P.C. in conflict with the Injunctions of Islam as laid down
in the Holy Qur'an and Sunnah:‑‑‑

10. After the above judgment was rendered, in order to bring the provisions of the P.P.C. and
Cr.P.C., in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, a
number of Ordinances were issued from time to time, first being Ordinance No.VII of 1990
promulgated on 5‑9‑1990 and the last being Ordinance No.CXIII of 1996 promulgated on
11‑12‑1996. It may be pertinent to refer to some of the provisions of the aforesaid Ordinance.

Section 299, P.P.C. gives the definitions of the terms "adult", "Arsh", "authorized medical officer",
"Daman", "Diyat", "Government", "Ikrah‑e Tam", "Ikrah‑e‑Naqis", "minor", Qatl", "Qisas", "Tazir"
and "Wali". It will suffice to reproduce the definitions of the terms "Diyat", "Qatl", "Qisas", "Tazir"
and "Wali", which read as follows:‑‑‑

"Diyat" means the compensation specified in section 323 payable to the heirs of the victim; "

"Qatl" means causing death of a person;"

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"Qisas" means punishment by causing similar hurt at same part of the body of the convict as he has
caused to the victim or by causing his death if he has committed qatl‑i-amd and in exercise of the
right of the victim or a Wali".

'Tazir" means punishment other than Qisas, Diyat, Arsh or Daman ;"

"Wali" means a person entitled to claim Qisas;"

11. It may also be advantageous to reproduce amended sections 302, 305, 306, 307, 308, 309, 310,
311, 338‑E and 338‑F, which read as under:‑‑‑

"Section 302‑‑

Punishment of Qatl‑i‑Amd.‑‑Whoever commits Qatl‑e‑Amd shall, subject to the provisions of this

Chapter be‑‑

(a) punished with death as qisas; or '

(b) punished with death for imprisonment for life as ta'zir having regard to the facts and
circumstances of the case, if the proof in either of the forms specified in section 304 is not
available; or

(c) punished with imprisonment of either description for a term which may extend to twenty‑five
years, where according to the Injunctions of Islam the punishment of qisas is not applicable.

Section 305‑‑

Wali.‑‑In case of Qatl‑i‑Amd, the wali shall be‑‑

(a) the heirs of the victim, according to his personal law; and

(b) the Government, if there is no heir.

Section 306‑

Qatl‑i‑Amd not liable to qisas.‑Qatil‑i‑Amd shall not be liable to Qisas in the following cases,
namely:‑‑‑

(a) when an offender is a minor or insane

Provided that, where a person liable to qisas associates himself in the commission of the offence
with a person not liable to Qisas, with the intention of saving himself from Qisas, he shall not be
exempted from Qisas;

(b) when an offender causes death of his child or grandchild, howlow soever;and

(c) when any wali of the victim is a direct descendant, howlowsoever, of the offender.

Section 307‑‑

Cases in which Qisas for Qatl‑i‑Amd shall not be enforced.‑ Qisas for Qatl‑e‑Amd, shall not be
enforced in the following cases, namely:‑‑‑

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(a) when the offender dies before the enforcement of Qisas;

(b) when any Wali voluntarily and without duress, to the satisfaction of the Court, waives the right
of Qisas under section 309 or compounds under section 310; and

(c) when the right of Qisas devolves on the offender as a result of the death of the Wali of the
victim, or on the person who has no right of Qisas against the offender.

Illustrations

(i) A kills Z, the maternal uncle of his son B. Z has no other wali except D the wife of A. D. has the
right of Qisas from A. But if D dies, the right of Qisas shall devolve on her son B who is also the
son of the offender A. B camtot claim qisas against his father. Therefore, the Qisas cannot be
enforced.

(ii) B kills Z, the brother of her husband A. Z has no heir except A. Here A can claim Qisas from
his wife B. But if A dies, the right of qisas shall devolve on his son D who is also son of B, the
Qisas cannot be enforced against B.

Section 308‑‑

Punishment in Qatl‑i‑Amd not liable to Qisas etc.‑‑(I) Where an offender guilty of Qatl‑i‑Amd is
not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307,
he shall be liable to Diyat:

Provided that, where the offender is minor or insane, Diyat shall be payable either from his
property or, by such person as may be determined by the Court:

Provided further that, where at the time of committing Qatl‑i‑Amd the offender being a minor, had
attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the
consequences of his act, he may also be punished with imprisonment of either description for a
term which may extend to fourteen years as ta'zir:

Provided further that, where the qisas is not enforceable under clause (c) of section 307, the
offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali
other than the offender, he shall be punished with imprisonment of either description for a term
which may extend to fourteen years as ta'zir.

(2) Notwithstanding anything contained in subsection (1), the Court having regard to the facts and
circumstances of the case in addition to the punishment of diyat, may punish the offender with
imprisonment of either description for a term which may extend to fourteen years, at Ta' zir.

Section 309

"Waiver (Afw) of qisas in Oatl‑i‑Amd.‑‑(In the case of Qatl‑i Amd, an adult sane Wali may, at any
time and without .any compensation, waive his right of qisas:

Provided that the right of Qisas shall not be waived‑

(a) where the Government is the Wali; or

(b) where the right of Qisas vests in a minor or insane.

(2) Where a victim has more than one Wali any one of them may waive his right of Qisas:

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Provided that the Wali who does not waive the right of qisas shall be entitled to his share of Diyat.

(3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one
victim shall not affect the right of Qisas of the Wali of the other victim.

(4) Where there are more than one offenders, the waiver of the right of Qisas against one offender
shall not affect the right of Qisas against the other offender.

Section 310‑‑

Compounding of qisas (S 1h) () in Oatl‑i‑Amd.‑‑(1) In the case of Qatl‑i‑Amd, an adult sane wali
may. at any time on accepting Badl‑i -Sulh, compound his right of qisas: .

Provided that giving a female in marriage shall not be a valid Badl‑i Sulh

(2) Where a Wali is a minor or an insane, the Wali of such minor or insane Wali may compound
the' right of Qisas on behalf of such minor or insane Wali:

Provided that the value of Badl‑i‑Sulh shall not be less than the value of Diyat.

(3) Where the Government is the Wali, it may compound the right of Qisas:

Provided that the value of Badl‑i‑Sulh shall'not be less than the value of Diyat.

(4) Where the Badal‑i‑Sulh is not determined or is a property or a right the value of which cannot
be determined in terms of money under Shari'ah the right of Qisas shall be deemed to have been
compounded and the offender shall be liable to Diyat.

(5) Badl‑i‑Sulh may be paid or given on demand or on a deferred date as may be agreed upon
between the offender and the Wali.

Explanation.‑‑In this section, Badl‑i‑Sulh means the mutually agreed compensation according to
Shari'ah to be paid or given by the offender to a Wali in cash or in kind or in the form of movable
or immovable property.

Section 311

Ta'zir after waiver or compounding of right of Oisas in Oatl‑i‑Amd.‑ Notwithstanding anything

contained in section 309 or section 310, where all the Wali do not waive or compound the right of
Qisas, or keeping in view the principle of Fasad‑fil‑arz the Court may, in its discretion having
regard to the facts and circumstances of the case, punish an offender against whom the right of
Qisas has been waived or compounded with imprisonment of either description for a term of which
may extend to fourteen years as Ta'zir.

Explanation.‑‑For the purpose of this section, the expression Fasad‑fil arz shall include the past
conduct of the offender as being a previous convict, habitual or professional criminal and the brutal
manner in which the offence is committed

Section 338‑E‑‑

Waiver or compounding of offences.‑‑(1) Subject to the provisions of this Chapter and section 345
of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be

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waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply
to the waiver or compounding of such offences:

Provided that, where an offence has been waived or compounded, the Court may, in its discretion
having regard to the facts and circumstances of the case, acquit or award ta'zir to the offender
according to the nature of the offence.

(2) 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.

Section 338‑F:

Interpretation.‑‑In the interpretation and application of the provisions of this Chapter, and in respect
of matter ancillary to or akin thereto, the Court shall be guided by the Injunctions of Islam as laid
down in the Holy Qur'an and Sunnah."

12. A perusal of the above‑quoted definition of the term "Diyat" given in clause (e) of section 299,
P.P.C. indicates that it connotes the amount of compensation specified in section 323 payable to the
heirs of the victim, whereas the word "Qatl" means causing death of a person. It may further be
noticed that the word "Qisas" has been defined as means punishment by causing similar hurt at the
same part of the body of the convict as he has caused to the victim or by causing his death if he has
committed Qatl‑i‑Amd in exercise of the right of the victim or a Wali. It may also be pointed out
that clause (1) of the above section gives the definition of the term "Ta'zir" by providing that it
means punishment other than Qisas, Diyat, Atsh or Daman. Whereas "Wali" has been defined as
means a person entitled to claim Qisas.

It may also be noticed that section 302 of P.P.C. which provides punishment of Qatl‑i‑Amd lays
down that whosoever commits Qatl‑i‑Amd shall, subject to the provisions of this Chapter be‑‑‑

(a) punished with death as qisas; or

(b) punished with death for imprisonment for life as Ta'zir having regard to the facts and
circumstances of the case, if the proof in either of the forms specified in section 304 is not
available; or

(c) punished with imprisonment of either description for a term which may extend to twenty‑five
years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.

It may further be mentioned that section 305 defines the term "Wali" as‑‑

(a) the heirs of the victim, according to his personal law; and

(b) the Government, if there is no heir.

It may also be noticed that section 306 deals with "Qatl‑i‑Amd not liable to Qisas" by providing
that Qatl‑i‑Amd shall not be liable to qisas in the following cases:‑‑‑

(a) when an offender is a minor or insane.

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The proviso to the above clause clarifies that where a person liable to qisas associates himself iii
the commission of the offence with a person not liable to Qisas, with the intention of saving
himself from Qisas, he shall not be exempted from Qisas.‑‑

(b) when an offender caused death of his child or grandchild, howlowsoever; and

(c) when any wali of the victim is a direct descendant, howlowsoever, of the offender.

It may further be noticed that section 307 provides the cases in which Qisas for Qatl‑i‑Amd shall
not be enforced, namely:

(a) when the offender dies before the enforcement of Qisas;

(b) when any Wali voluntarily and without duress, to the satisfaction of the Court, waives his right
of Qisas under section 309 or compounds under section 310; and

(c) when the right of qisas devolves on the offender as a result of the death of the Wali of the
victim, or on the person who has no right of Qisas against the offender.

The two Illustrations given in the above section 307 explain the above section. They need not be
repeated.

It may also be pointed out that subsection (1) of section 308 deals with the punishment in
Qatl‑i‑Amd not liable to qisas by providing that where an offender guilty of Qatl‑i‑Amd is riot
liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he
shall be liable to Diyat. It may be noticed that first proviso to the above subsection lays down that
where the offender is minor or insane, diyat shall be payable either from his property or by such
person as may be determined by the Court. Whereas second proviso to the above subsection
provides that where at the time of committing Qatl‑i‑Amd the offender being a minor had attained
sufficient maturity or being insane, had a lucid interval so as to be able to realize the consequences
of his act, he may also be punished with imprisonment for either description for a term which may
extend to fourteen years as Ta'zir. It may be pointed out that the third proviso to above subsection
lays down that where the qisas is not enforceable under clause (c) of section 307, the offender shall
be liable to Diyat only if there is any wali other than the offender, and if there is no Wali other than
the offender he shall be punished with imprisonment for either description for a term which may
extend to fourteen years as Ta'zir.

It may be highlighted that subsection (1) of section 309 deals with the Waiver (Afw) of Qisas in
Qatl‑i‑Amd by providing that in the case of Qatl‑i‑Amd, and adult sane wali may, at any time
without any compensation, waive his right of Qisas. However, proviso to the above subsection lays
down that Qisas shall not be waived:‑‑

(a) where the Government is the Wali; or

(b) where the right of Qisas vests in a minor or insane.

Whereas subsection (2) thereof provides that where the victim has more than one Wali, any one of
them may waive his right of Qisas. Proviso thereof provides that the wali who does not waive the
right of Qisas shall be entitled to his share of Diyat. It may further be mentioned that subsection (3)
thereof deals with the case where more than one victim is involved. It provides that the waiver of
the right of Qisas by the Wali of one victim shall not affect the right of qisas of the Wali of the
other victim. Whereas subsection (4) of the same covers the case where there is more than one
offender by providing that the waiver of the right of Qisas of one offender shall not affect the right
of Qisas against the other offender.

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It may further be observed that subsection (1) of section 310 deals with' the compounding of Qisas
(Sulk) in Qatl‑i‑Amd by laying down that in case of qatl‑i‑amd, an adult sane wali may at any time
on accepting Badal‑i‑Sulh. compound his right of qisas. However, the proviso to the above
subsection excludes a female in marriage as a valid consideration for Badal‑i‑Sulh. Whereas
subsection (2) thereof provides that where the Wali is a minor or insane, the Wali of such minor or
insane Wali may compound the right of Qisas on behalf of such minor or insane Wali. Proviso to
the same lays down that the value of Badl‑i‑Sulh shall not be less than the value of Diyat. It may
further be mentioned that subsection (3) of the above section 310 provides that where the
Government is the Wali, it may compound the right of Qisas. Proviso to the above subsection lays
down that the value of Badl‑i‑Sulh shall not be less than the value of Diyat. It may also be stated
that subsection (4) thereof provides that where the Badl‑i‑Sulh is not determined or is a property or
a right the value of which cannot be determined in terms of money under Shari'ah, the right of
Qisas shall be deemed to have been compounded and the offender shall be liable to diyat. It may
further be mentioned that subsection (5) of above section lays down the mode of payment by
providing that Badl‑i‑Sulh may be paid or given on demand or on a deferred date as may be agreed
upon between the offender and the Wali. It may be observed that Explanation to the above
subsection provides that in this section Badl‑i‑Sulh means the mutually agreed compensation
according to Shari'ah to be paid or given by the offender to a Wali in cash or in I the form of
movable or immovable property.

It may also be highlighted that section 311 empowers the Court by providing that‑notwithstanding
anything contained in section 309 or section 310, where all the Wali do not waive or compound the
right of Qisas or keeping m view the principle of Fasad‑fil‑arz, the Court may in its discretion
having regard to the facts and circumstances of the case, punish an offender against whom the right
of Qisas has been waived or compounded with imprisonment of either description for a term which
may extend to fourteen years as Ta'zir. Explanation to the above section clarifies the scope of the
expression "Fasad‑fil‑arz" by laying down that for the purpose of this section, the expression
Fasad‑fil‑arz shall include the past conduct of the offender as being a previous convict, habitual or
professional criminal and the brutal manner in which the offence is committed.

It may further be noticed that subsection (1) of section 338‑E lays down that subject to the
provisions of this Chapter i.e. Chapter XVI and section 345 of the Code of Criminal Procedure, all
offences under this Chapter may be waived or compounded and the provisions of sections 309 and
310 shall mutatis mutandis apply to the waiver or compounding of such offences. The proviso to
the above subsection provides that where an offence has been waived or compounded, the Court
may, in its discretion having regard to the facts and circumstances of the case, acquit or award
Ta'zir to the offender according to the nature of the offence. Whereas subsection (2) thereof lays
down that all questions relating to waiver or compounding of an offence or award of punishment
under section 310, whether before or after the passing of such sentence, shall be determined by the
trial Court. However, proviso to the above subsection provides that where the offence of Qisas or
any other sentence is waived or compounded during the pendency of an appeal, such question may
be determined by the Appellate Court.

It may also be stated that section 338‑F provides guidelines as to the interpretation of the various
provisions of the above Chapter by laying down that in the interpretation and application of the
provisions of the aforesaid Chapter, and in respect of matters ancillary or akin thereto, the Court
shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

13. Having referred to the relevant provisions of the amended P.P.C., we may also observe that
inter alia subsections (1) and (2) of section 345 of Cr.P.C., , were amended as to make the offences
mentioned therein compoundable without and with the permission of the Court. It may be pointed
out that under subsection (1) of section 345 of Cr.P.C., it is provided that the offences punishable
under the sections of the Pakistan Penal Code specified in the first two columns of the Table next

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following may be compounded by the persons mentioned in the third column of that Table.
Whereas subsection (2) thereof lays down that the offences punishable under this section of the
Pakistan Penal Code specified in the first two columns of the Table next following may with the
permission of the Court before which any prosecution for such offences is pending be compounded
by the persons mentioned in the third column. Whereas subsection (3) thereof provides that when
any offence is compoundable under this section, the abetment of such offence or an attempt to
commit such offence (when such attempt is itself an offence) may be compounded in the like
manner. It may further be mentioned that subsection (4) of the same lays down that where the
person who would otherwise be competent to compound under this section is under the age of 18
years, or is an idiot or lunatic, any persons competent to contract on his behalf may with the
permission of the Court compound such offence. Whereas subsection (5) thereof provides that
when the accused has been convicted and an appeal is pending, no composition for the offence
shall be allowed without the leave of the Court before which the appeal is to be heard. Subsection
(5‑A), which was incorporated by the Law Reforms Ordinance, 1972, provides that a High Court
acting in exercise of its powers of revision under section 439 and a Court of Session so acting
under section 439‑A may allow any person to compound any offence which he is competent to
compound under this section. It may further be observed that subsection (6) thereof lays down that
composition of an offence under this section shall have the effect of an acquittal of the accused
(with whom the h offence has been compounded). The latter portion was incorporated by Law
Reforms Ordinance, 1972. It may also be stated that subsection (7) of the same provides that no
offence shall be compounded except as provided under this section.

14. The effect of the above amendments in subsections (1) and (2) of section 345 was inter alia to
make offences under sections 302, 303, 308, 316, 319, 320, 322, 324, 334, 337, 337‑D, 337‑F,
337‑G, 337‑H, 337‑1, 337‑J, 337‑K, 337‑L, 337‑M, 337‑N, 338‑A and 338‑C compoundable by the
legal heirs of the deceased or the person to whom hurt is caused etc., with the permission of the
Court.

15. Reverting to the basic question involved in the present case, namely, whether the benefit of
subsection (2) of section 309, P.P.C. can be extended to an accused person who has been awarded
death sentence or imprisonment for life as Ta'zir and not as Qisas, it may be stated that the above
question seems to stand concluded by this Court inter alia in two of the above three cited cases. In
the case of Safdar Ali and another (supra), this Court made the following observations on the above
question:‑‑‑

"In this case, three petitioners, though convicted under section 302, P.P.C. have been sentenced to
life imprisonment. Section 310 provides for compounding of Qisas (Sulah) in Qatl‑i‑Amd and lays
down that "in the case of Qatl‑i‑Amd, an adult sane Wali may, at any time on accepting
Badl‑i‑Sulah compound his right of Qisas". Qisas is defined in clause (k) of section 299 as
follows:‑‑‑

"(k) ' Qisas' means punishment by causing similar hurt at the same part of the body of the convict
as he has caused to the victim or by causing his death if he has committed Qatl‑i‑Amd in exercise
of the right of the victim or a Wali."

Accordingly, the right of Qisas means the right of causing death of the convict if he has committed
Qatl‑i‑Amd. In this case, as the petitioners have not been sentenced to death, but to life
imprisonment, the question of the heirs of the victim compounding their right of Qisas does not
arise.

The present case, therefore, falls under the provisions of subsection (2) of section 345, as amended
by the Criminal Law (Amendment) Ordinance, 1991. According to section 10 of the said
Ordinance clause (b) of section 345 of the Cr.P.C., has been substituted as follows:‑‑‑

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"(b) in subsection (2), in the table, in the second column, for the figures "302, 303, 304‑A, 305,
306, 307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338" and the entries
thereto in the first and third columns the following shall be substituted, namely:‑‑‑

"Qatl‑i‑Amd 302 By the heirs of the victim

----------- --- -----------
----------- --- -----------

Subsection (2), as amended, now reads as follows:‑‑

"(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first
two columns of the table next following may, with the permission of the Court before which any
prosecution for such offence is pending, be compounded by the person mentioned in the third
column of that table."

Whereas in the case of Manzoor Hussaina and others (supra), inter alia the following was
concluded:‑‑‑

"We have anxiously considered the arguments of the learned counsel for the parties and have
minutely gone through the record of the case. Admittedly, Mst. Sakina is the wife of Muhammad
Siddique deceased and being his Shari heir falls within the definition of "Wali" and entitled to
'Afw' under section 309, P.P.C., and to compound the Qisas under section 310, P.P.C. According to
her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the
appellants in any way as all the appellants were tried, convicted and sentenced under Ta'zir and not
Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be
their sister cannot come to their rescue in any way. The trial Court has fairly dealt with this aspect
of the case and we have reasons to differ with it."

16. Similar view was taken by the Shariat Appellate Bench of this Court in the case of Federation
of Pakistan v. Gul Hassan Khan (supra), wherein Pir Muhammad Karam Shah, J, who wrote the
leading opinion, quoted with approval the following observations from the book "(AL TASHRIH
ALJANAI ALISLAMI)" written by renowned Egyptian jurist "(ABDUL KADIR AUDAH
MARHOOM)",:

Pir Muhammad Karam Shah, J. also quoted with approval the following extract from "MAROOF
AL QURAN" (a Tafsir on Holy Qur'an) by "MOULANA MUFTI MUHAMMAD SHAFI". which
deals with the question, what will happen if any of the Wali does not waive his right of Qisas:

17. Reference may also be made to the following extract from the book ISLAM KA FOJDARI
KANOON by SAJID UR REHMAN KANDHLVE MA.

18. The above extract from " MOULANA MUFTI MUHAMMAD SHAFI "'s celebrated
TAFSEER MARAF AL QURAN and the extract from the above book indicates that if the victim
has more than one Wali and if any one of them waives his right, the right of Qisas cannot be
enforced. The Wali who has not waived or has not entered into Badal‑e‑Sulh will be entitled to
receive his share of Diyat subject to section 311, P.P.C., under which it has been provided that
notwithstanding anything contained in section 309 or section 310, where all the Wali do not waive
or compound the right of Qisas or keeping in view the principle of Fasad fil‑Arz, the Court may in
its discretion having regard to the facts and circumstances of the case, punish an offender against
whom right of Qisas has been waived or compounded with imprisonment of either description for a
term which may extend to fourteen years as Ta'zir as pointed out hereinabove. It may further be
observed that subsection (2) of section 309, P.P.C., quoted hereinabove and discussed is in line with
the above extract from TAFSEER MARAF AL QURAN" by MOULANA MUFTI MUHAMMAD
SHAFI as its proviso lays down that the Wali, who does not waive his right of Qisas, shall be

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entitled to his share of Diyat. there is no doubt that section 338‑E, P.P.C., provides that subject to
the provisions of this Chapter and section 345 of Cr.P.C., all offences under this Chapter may be
waived or compounded and the provisions of sections 309 and 310 shall mutates mutandis apply to
the waiver of compounding of such offences. The proviso to the same lays down that where
offences have been waived or compounded, the Court may by its discretion having regard to the
facts and circumstances of the case acquit or award Ta'zir to the offender according to the nature of
the offence. The above section is to be interpreted in the light of the guideline for interpretation
provided in section 338‑F, which enjoins that the Court while interpreting and applying the
provisions of the Chapter in question of the P.P.C., and in respect of matters ancillary or akin
thereto, shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In
our view, this provision does not nullify the well‑settled proposition of law that in case where an
accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs
cannot waive or accept Badal‑i‑Sulh. However, in view of the amendment in section 345(2),
Cr.P.C.; the sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the
deceased with the permission of the Court concerned.

19. Mr. Asif Saeed Khan Khosa has referred to the case of Ghulam Hussain and another v. The
State NLR 1993 Cr. 203, in which a Division Bench of the Lahore High Court held that in view of
the fact that some of the Wali of deceased had granted Ufw to the appellant, the sentence of death
could not be enforced against them but they would be liable to be punished with imprisonment
extending up to 25 years by way of Ta'zir according to the Injunctions of Islam as evidenced by the
provision of section 302(c), P.P.C.

He has also referred to the case of Muratab Ali v. The State 1994 PCr.LJ 1413, to the case of Nisar
Ahmad and 2 others v. The State 1994 P Cr.L.J. 1587 and to the case of Tariq Mehmood and
another v. The State PLD 1992 Lahore 75.

In the first case, some of the legal heirs of the deceased had not joined in the compromise. The
High Court substituted sentence of death to that ten years' R.I., subject to the payment of Diyat to
the legal heirs.

The same view was taken in the above second case by the same Bench of the High Court.

In the third case, a Division Bench of the Lahore High Court despite of the composition of murder
and despite the waiver of Qisas by the Wali of the deceased, sentence of death imposed on the
accused and sentence of imprisonment for life awarded to his co‑accused were set aside and each
of them was punished to suffer five years' R.I., as envisaged by section 311, P.P.C. However, the
convictions and sentences recorded against the accused under sections 353/34, 365/34 and 307/24,
P.P.C., were maintained as they were not affected by the‑above composition and waiver.

20. Mr. Asif Saeed Khan Khosa has further referred to the case of Nazar Ali and another PLD 1992
Peshawar 176, to the case of Muhammad Ishaq v. The State PLD 1992 Peshawar 187 and to the
case of Usman and another v. The State 1992 P Cr.LJ 1960.

In the above first case, a learned Single Judge of the Peshawar High Court held that sections 309,
310 and 311; P.P.C., have no application to a murder case in which sentence has been awarded as
Ta'zir, but the composition of the said offence under section 345, Cr.P.C., with the permission of
the Court, would result in acquittal.

In the aforesaid second case, a learned Single Judge of the Peshawar High Court held that for
Oatl‑i‑Amd, the appellant could not be awarded punishment as Ta'zir as the offence was committed
by him before the commencement of Ordinance No.VII of 1990 substituting section 331, P.P.C.,
which was not made applicable retrospectively.

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In the above third case, a learned Single Judge of the High Court of Sindh held that since the trial
Court had granted the permission to compromise and also accepted the same, the only option left
with the trial Court was to acquit the accused under section 345(6), Cr.P.C., and it had no power to
convict the accused under section 311, P.P.C. ,

21. Then Mr. Khosa referred to the case of Azmat Ullah Khan v. The State 1993 P Cr.LJ 1220, in
which a learned Single Judge of the Lahore High Court, while dismissing a criminal revision
petition against the framing of the charge by the trial Court under section 302, P.P.C., repelled the
contention of the learned counsel for the petitioner that as two of the legal heirs of the deceased had
entered into a compromise, with the accused before the commencement of the trial, the trial Court
should have framed the charge under section 311, P.P.C., and not under section 302, P.P.C.

He has also referred to the case of Manzoor Ahmad alias Shami v. The State 1991 P CI.LJ 1480, in
which application for compromise was not signed by the legal heirs of the deceased but was only
signed by the complainant. A Division Bench of the Lahore High Court, while declining to accept
the compromise, substituted life imprisonment in place of death sentence.

22. It may be observed that Mr. Asif Saeed Khan Khosa seems to be correct in contending that
different superior Courts have approached the question of applicability of sections 309, 310 and
311, P.P.C., differently but this fact does not. in any way, affect the view which we are inclined to
take. If an accused person has been awarded death sentence as Qisas, the same can only be undone
under section 309 or section 310, P.P.C. However, if the sentence is awarded by way of Ta'zir, the
Court has the power to grant permission to the legal heirs of the deceased and the accused to
compound the offence under subsection (2) of section 345, Cr.P.C., which will result in acquittal
under subsection (6) thereof if the compromise is accepted by the Court. In this regard it will be
pertinent to refer to a recent judgment of this Court by a Full Bench in the case of Abdul Haque v.
The State and another PLD 1996 SC 1, in which the question in issue was, as to whether the plea of
sudden and grave provocation which was available to an accused under Exception I of the
unamended section 300, P.P.C., could be invoked in case where a person has been sentenced to
death as Qisas under clause (a) of the amended section 302, P.P.C. The answer was recorded in the
negative. However, the conviction was altered from clause (a) to clause (b) of section 302, P.P.C.,
as the Court was of the view that the case was not proved as required under clause (a) of section
302. Since under clause (b) of section 302, P.P.C., the Court has choice to impose either death
sentence or imprisonment for life as Ta'zir, it was held that in such a case grave and sudden
provocation could be a mitigating circumstance warranting imposition of lesser sentence i.e.
imprisonment for life as Ta'zir.

It may be pointed out that if a case is covered by clause (a) of section 302, P.P.C., and death
sentence has been awarded as Qisas, the Court cannot substitute the above sentence of death with
that of imprisonment for life. In such a case the Wali of the deceased involved can either waive
Qisas under section 309, P.P.C., or he can compound under section 310, P.P.C.

It may be observed that any view contrary to what is stated above is not sustainable in law.

23. The upshot of the above discussion is that since the mother of the deceased had not joined the
compromise and as the High Court has altered the death sentence into imprisonment for life which
could be awarded as Ta'zir and not as Qisas, section 309(2), P.P.C., cannot be pressed into service.
The above application for compromise is rejected. The office may fix the above petitions for leave
for hearing.

24. It may be stated that it was lastly submitted by the learned counsel for the petitioner Shaukat
Ali alias Shauka that now even the mother of the deceased has agreed to compromise. It will
suffice to observe that the same is not before us.

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(Sd.)
Ajmal Mian, J.
(Sd.)
Saiduzzaman Siddiqui, J.
(Sd.)
Fazal Ilahi Khan, J.

I agree. I will append my note separately.

(Sd.)
Muhammad Bashir Khan Jehangir, J.

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑I have had the privilege and the benefit of
going through the draft judgment proposed by my learned brother, Ajmal Mian, J. The factual
background of the propositions arising out of the titled Criminal Miscellaneous Application under
section 345, Cr.P.C., as amended by the Criminal Law (Second Amendment) Ordinance, 1990,
seeking acquittal of the petitioner, namely, Shaukat Ali alias Shouka, whose conviction under
section 302, P.P.C., had been maintained and his sentence of death converted into imprisonment for
life has been succinctly narrated. The facts narrated may be read as part of my observations. I do
not, therefore, deem it necessary to reiterate them. While respectfully subscribing to the conclusion
arrived at in the draft judgment I have considered it proper to add my views on the following two
legal issues:‑‑‑

(1) Where punishment is awarded by way of Tazir, can principle of section 309 of Pakistan Penal
Code XLV of 1860 as amended by virtue of the Criminal Law (Second Amendment) Ordinance,
1990, apply, for compromise of the case?

(2) Whether a case under section 302, P.P.C., as amended can be compounded if all the heirs do not
agree to compromise?

Sections 302 and 309, P.P.C., as amended are reproduced hereunder for ready reference:‑‑‑

"Section 302. Punishment of Qatl‑i‑Amd.‑‑Whoever commits qatl‑i amd shall, subject to the
provisions of this Chapter be‑‑

(a) punished with death as Qisas;

(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and
circumstances of the case, if the proof in either of the forms specified in section 304 is not
available; or

(c) punished with imprisonment of either description for a term which may extend to twenty‑five
years, where according to the injunctions of Islam the punishment of Qisas is not applicable.

Section 309. Waiver‑Afw of Qisas in qatl‑i‑amd.‑‑(1) In the case of qatl‑i‑amd an adult sane Wali
may, at any time and without may compensation, waives his right of Qisas:

Provided that the right of Qisas shall not be waived:

(a) Where the Government is the Wali; or

(b) Where the right of Qisas vests in a minor or insane.

(2) Where a victim has more than one Wali, only one of them may waive his right of Qisas:

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Provided that the Wali, who does not waive the right of Qisas shall be entitled to his share of Diyat.
.

(3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one
victim shall not affect the right of Qisas of the Wali of the other victim.

(4) Where there are more than one offenders, the waiver of the right of Qisas against one offender
shall not affect the right of Qisas against the other offender."

Dr. Khalid Ranjha, learned Advocate‑General, Punjab, who was on notice raised no objection to
the acceptance of the compromise and in support therefor he referred to the provision of subsection
(2) of section 309, P.P.C., and its proviso which lays down that where a victim is survived by more
than one 'Wali' any one of them may waive his right of Qisas (underlining is provided for
emphasis) but the 'Wali' who does not waive his right aforesaid, shall be entitled to his share of
'Diyat'. On this premises he supported the plea for acceptance of the compromise on the ground
that section 309(2) ante being beneficial in its operation should be liberally construed in favour of a
convict. As has been noticed by my learned brother Ajmal Mian, J. Raja M. Ibrahim Satti and Mr.
Hasan Ahmad Khan Kanwar have adopted the above contention of Dr. Khalid Ranjha.

As against this Sardar Asif Saeed Khan Khosa, learned Advocate Supreme Court, who had
rendered valuable assistance to us, referred to the case law since the enforcement of the Criminal
Law (Second Amendment) Ordinance, 1990 till date on a number of aspects which the superior
Courts of the country have been called upon to address. In this context he placed reliance on: (1)
Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan (PLD
1989 SC 633), (2) Safdar Ali and others v. The State and another PLD 1991 SC 202, (3) Javaid
Masih v. The State 1993 SCMR 1574, (4) Manzoor Hussain and 4 others v. The State 1994 SCMR
1327, (5) Ghulam Hussain and another v. The State NLR 1993 Crl. 203, (6) Tariq Mehmood and
another v. The State PLD 1992 Lahore 75, (7) Nazar Ali and another v. The State PLD 1992
Peshawar 176, (8) Muhammad Ishaq v. The State PLD 1992 Peshawar 187, (9) Usman and another
v. The State 1992 P Cr.LJ 1960, (10) Azmat Ullah Khan v. The State 1993 P Cr.LJ 1220, (11)
Muratab Ali v. The State 1994 P Cr.LJ 1413, and (12) Nisar Ahmad and 2 others v. The State
PCr.LJ 1587. My learned brother Ajmal Mian, J. in order to distinguish these precedents, has very
ably deduced the ratio out of each one of them. Out of these cases, in the last mentioned case of
Nisar Ahmad and 2 others v. The State (supra) the proposition in the case in hand had been dealt
with briefly.

The petitioner was not convicted for an offence of 'Qatl‑e‑Amd' liable to Qisas within the purview
of section 302(a), P.P.C. He was of course convicted under section 302, P.P.C., as it held the field
prior to its amendment under the Criminal Law (Second Amendment) Ordinance, 1990. In any case
the High Court in exercise of its appellate jurisdiction has already reduced the sentence awarded to
the petitioner to life imprisonment. In Safdar Ali and others v. The State and another PLD 1991 SC
202 in almost similar factual background this Court held as under:‑‑‑

"In this case, three petitioners, though convicted under section 302, P. P. C., have been sentenced to
life imprisonment. Section 310 provides for compounding of Qisas (Sulah) in Qatl‑i‑Amd and lays
down that "in the case of Qatl‑i‑Amd, an adult sane Wali may, at any time on accepting
Badl‑i‑Sulah, compound his right of Qisas".

Qisas is defined in clause (k) of section 299 as follows:‑‑‑

"(k) 'Qisas' means punishment by causing similar hurt at the same part of the body of the convict as
he has caused to the victim or by causing his death if he has committed Qatl‑i‑Amd in exercise of
the right of the victim or a Wali".

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Accordingly, the right of Qisas means the right of causing death of the convict if he has committed
Qatl‑i‑Amd. In this case, as the petitioners have not been sentenced to death, but to life
imprisonment, the question of the heirs of the victim compounding their right of Qisas does not
arise. .

The present case, therefore, falls under the provisions of subsection (2) of section 345, as amended
by the Criminal Law (Amendment). Ordinance, 1991. According to section 10 of the said
Ordinance clause (b) of section 345, of the Cr.P.C., has been substituted as follows:‑‑‑

(b) in subsection (2), in the table, in the second column, for the figures "302, 303, 304‑A, 305, 306,
307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338" and the entries
relating thereto in the first and third columns the following shall be substituted.

"Qatl‑i‑Amd 302 By the heirs of the victim

-------- --- ---------
-------- --- ---------

Subsection (2), as amended, now reads as follows:‑‑‑

"(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first
two columns of the table next following may, with the permission of the Court before which any
prosecution for such offence is pending, be compounded by the person mentioned in' the third
column of that table:

Section Offence Whether Whether Whether Whether Punishment By

the a warrant bailable compoundable Under the what
police or or not or not Pakistan court
may a Penal triable
arrest summon code
without shall
warrant ordinarily
or not. issue
in
the
first
instance
1 2 3 4 5 6 7 8
302 Qatl-i- May Warrant Not Compoundable Qisas Court
Amd arrest bailable Or of
without Death Session.
warrant imprisonment
Upto twenty
Five years

Again, notwithstanding the fact that the occurrence in this case ‑had taken place on 29‑6‑1990
while the Criminal Law (Second Amendment) Ordinance, 1990, was promulgated on 5‑9‑1990,
(actually it came into effect on 12th of Rabi‑ul‑Awal, 1411 Hijri falling on 3‑10‑1990, its
provisions could be invoked under section 338‑E read with section 338‑H which reads as under:‑‑‑

"338‑E. Waiver or compounding of ‑offence. ‑‑Subject to the provisions of this Chapter and section
345 of the Code of Criminal Procedure 1898, all offences under this Chapter may be waived or

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compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the
waiver or compounding of such offences. " (Underlining is ours).

"338‑H. Saving.‑‑(1) Nothing in this Chapter, except sections 309, 310 and 338‑E, shall apply to
cases pending before any Court immediately before the commencement of the Criminal Law
(Second Amendment) Ordinance, 1990 (VII of 1990), or to the offences committed before such
commencement. "

It this view of the matter, the ratio deducible from the case of Safdar Ali (supra) is that waiver or
the compounding of an offence in cases falling under section 309 (waiver‑‑Afw) of Qisas in
Qatl‑i‑Amd and section 310 (Compounding of Qisas‑Sulah in Qatl‑i‑Amd) is possible even in
those cases of Qatl‑i‑amd where the right of Qisas cannot be enforced because the sentence of
death has not been imposed and the lesser sentence of imprisonment for. life under section 302,
P.P.C., had been awarded in view of the provisions of section 345, Cr.P.C., as amended.

From this stage onwards the precedent of Safdar Ali (supra) is distinguishable inasmuch as in that
case not only that all the heirs of the deceased desired to compound the offence but a sum of
Rs.1,71,000 was also paid to the heirs of the victim as Badal‑i‑Sulah. In the instant case, as it has
been noted earlier, while the widow of the victim in person and as guardian of her minor children
who are also his 'walis' have compounded the offence with the petitioner whereas the mother of the
victim has declined to do.

Again under Criminal Law (Third Amendment) Ordinance (VIII of 1990) which came into force on
12th Rabi‑ul‑Awal, 1411 Hijri, falling on 3‑10‑1990 under column (3) of subsection (2) of section
345, Cr.P.C., reproduced ante, inter alia, the offence punishable under section 302 of the P.P.C.,
with the permission of the Court before which any prosecution is pending or in view of subsection
(5) of section 345, Cr.P.C., with leave of the (sic) "by the heirs of the victim". The crucial words
are "by the heirs of the victim". By employing this phraseology the intendment of the legislature
clearly appears to be that the composition of the offence aforesaid was made permissible. if all the
heirs of the victim had consented. If the Legislature's intendment had been to allow compounding
of the offences by anyone or more of the heirs of the victim there was nothing to prevent it to have
used a different wording appropriate to express its intention. I would, therefore, approve the
construction put on the amended section 345, Cr.P.C., by a learned Judge of a Division Bench of
Lahore High Court in the case of Nisar Ahmad and 2 others (supra) 1994 P Cr.LJ 1587 wherein it
was held:

"It is true that only some of the heirs of Rehmat deceased have compounded the murder in question
with the three appellants. Therefore, the acquittal cannot be claimed for Nisar appellant who stands
convicted under section 302, P.P.C., and punished with death. The newly‑substituted provisions of
section 311, P.P.C., as amended by Ordinance XII of 1993 envisage punishment of the offender by
way of Tazir to a maximum term of 14 years' imprisonment if only some of the Walis of the
deceased waive or compound the right of Qisas."

In this case as noticed earlier the occurrence had taken place on 29‑6‑1990 before the enforcement
of Criminal Law (Second Amendment) Ordinance. He could only be and had been convicted under
section 302, P.P.C., as it held the field before the aforementioned amendments. Accordingly he was
sentenced to death apart from payment of fine etc. On appeal, however, the High Court while
maintaining his conviction, had commuted his death sentence, and awarded him imprisonment for
life but did not interfere with the sentence of fine etc. Neither trial Court nor the High Court or for
that matter even this Court could have resorted in this case to the provisions of the Criminal Law
(Second Amendment) Ordinance, 1990 except amended sections 309 and 310 of the Penal Code..
Resultantly, award of punishment by way of ' Tazir' could not and had not been awarded in this
case, the first proposition noted in para. l ante need not be answered one way or the other. Be that
as it may and notwithstanding the fact that newly‑added section 345, Cr.P.C., is a procedural in

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effect, therefore, ordinarily it would have been applicable retrospectively. Nonetheless it has been
made applicable under the Criminal Law (Third Amendment) Ordinance, 1990, with effect from
3‑10‑1990. By force of the newly‑inserted sections 338‑E and 338‑H of the Penal Code it is,
therefore, doubtful if compounding of offence of 'murder' under section 345, Cr.P.C., as it stood
prior to the amendment would legally be permissible. In any case as all the heirs of the victim
excepting his mother in the case in hand have compromised with the victim, therefore, the case
against the petitioner under section 302, P.P.C., can neither be compounded nor provisions of
section 309(2), P.P.C., could possibly be pressed into service. I am, therefore, in respectful
agreement with the conclusion arrived at by my learned brother Ajmal Mian, J.

(Sd.)
Muhammad Bashir Khan Jehangiri, J

M.B.A./M‑3369/S Compromise application rejected.

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