1997 P CRLJ 247

27/01/2022, 10:41 1997 P Cr
1997 P Cr. L J 247

[Quetta]

Before Amir-ul-Mulk Mengal and
Javed Iqbal, JJ

THE STATE---Appellant

Versus

MANSOOR ALI ---Respondent

Suo Motu Reference (Revision
Petition No.55 of 1994), decided on 16th May, 1996.

(a) Criminal Procedure Code (V
of 1898)---

----S. 435/439---Constitution of
Pakistan (1973), Art.203---Suppression of Terrorist
Activities (Special Courts)
Act (XV of 1975), Preamble---Suo motu revisional jurisdiction of
High
Court---High Court calling for record of case pending before Special Court
constituted
under Act, 1975---Legality---Division Bench of High Court has
jurisdiction to call for record
of a particular case in order to find the
propriety or legality of the order passed or judgment
made by Special Court
constituted under the Suppression of Terrorist Activities (Special
Courts) Act,
1975.

PLD 1987 Quetta 51 ref.

(b) Muhammadan Law---

---- Inheritance---Person
committing homicide is excluded from inheriting the property of the
victim.

Islamic Laws of Hudood, Qisas,
Diyat by Dr Tanzil-ur-Rehman, Part 11, p.344 and PLD
1981 Azad J&K 49 ref.

(c) Criminal Procedure Code (V
of 1898)---

----S. 345---Penal Code (XLV of
1860), Ss.309 & 310---Compromise---Legal heirs of
the deceased/victim are
entitled to compromise the offence or to waive the right of Qisas, but
such
right can be exercised only when the Wali is adult as well as sane.

(d) Criminal Procedure Code (V
of 1898)---

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=1997Q3001 1/13
27/01/2022, 10:41 1997 P Cr
----S. 345---Penal Code (XLV of

1860), Ss.309 & 310---Compromise when to be
accepted---In cases where the legal
heirs of the victim voluntarily enter into a compromise or
exercise right of
waiver for good relations of the remaining family members or of the parties
or
for any other lawful object, the same shall have to be accepted.

(e) Penal Code (XLV of-1860)---

----Ss. 302 & 309---Criminal
Procedure Code (V of 1898), Ss.345 & 439---Suo motu
revision against
acquittal of accused on the basis of compromise-- Acceptance of so-called
waiver by the sole surviving female legal heir in a case of five murders whose sanity
had been
challenged by the complainant was illegal and not tenable in law
particularly when she had
neither signed the compromise form, nor she had been
referred by Trial Court to any Medical
Board to find out her mental
condition---Acquittal of accused under S.302, P.P.C. on the
basis of compromise
was consequently set aside and the case was remanded to Trial Court
to proceed
in accordance with law by referring the said female legal heir of the deceased
persons to a Medical Board in order to find out whether she was sane or insane
and then to
decide the case.
PLD 1987 Quetta 51; Islamic Laws

of Hudood, Qisas, Diyat by Dr Tanzil-ur-Rehman, Part
11, p.344; PLD 1981 Azad
J&K 49; PLD 1991 Lah 317 and PLD 1989 SC 633 ref.

PLD 1991 SC 202 distinguished.

Ch. Ejaz Yousuf, Addl. A.-G. for
the State.

Ehsan-ul-Haq for Respondent.

Muhammad Aslam Chishti, Raja M.
Afsar and S.A.M. Quadri: Amicus curiae

Date of hearing: 5th September,
1995

JUDGMENT

AMIR-UL-MULK MENGAL, J.---
By this judgment we intend to dispose suo motu
Revision Petition No.55 of 1994.

Facts briefly stated are that on
8-9-1989 Jehan Zaib lodged a report with Sibi Police that he
was sitting in the
house of Muhammad Yaqub (deceased) when accused Mansoor Ali came
into the room
armed with a Klashnikov, who started firing on the inmates of the house. As a
result of this firing Muhammad Yaqub, Mst. Zaib-un-Nisa, Mst. Hameeda, Mst.
Sharifan and
Mst. Fateh Khatoon all received bullet injuries and died on the
spot; whereas Mst. Murad
Bibi and complainant Jehan Zaib got serious bullet
injuries and were shifted to the hospital for
treatment. The police started
investigation and arrested accused Mansoor who tried to
27/01/2022, 10:41 1997 P Cr
abscond from the scene

of occurrence and recovered the weapon of offence (Klashnikov) at
his instance.
Mewa Khan was stated to have allegedly harboured accused Mansoor Ali when
he
took him on motor-cycle after he committed the offence and concealed him in a
jungle.

It appears from the record that
Mansoor Ali convict was nephew of Muhammad Yaqub
deceased, who was a moneyed
person but without any male issue. However, deceased
Muhammad Yaqub had 3
daughters, one was a lady doctor, the second was under training
for Engineering
and 3rd daughter was a Headmistress in a school.

The motive behind the offence was
the property dispute between deceased Muhammad
Yaqub and his brother Mehr Ali
(father of the convict). Since Muhammad Yaqub had no
male issue, therefore, the
accused wiped off his entire family members including 3 daughters
and one
sister Mst. Fateh Khatoon as well as widow to grab the entire property of
deceased
Muhammad Yaqub.

After completion of investigation
challan was put up for trial before the Special Judge,
Suppression of Terrorist
Activities under sections 302/34 and 307/34, P.P.C. and under
section 109,
P.P.C. whereas Mewa Khan was charged under section 216, P.P.C. The charge
was
read over and the accused did not plead guilty. The prosecution started to
produce its
evidence.
Mst. Murad Bibi was the-.first
P.W. who was sister of Muhammad Yaqub and who also
received bullet injuries in
the incident, but she survived. She affirmed on oath and narrated the
entire
story, how Mansoor Ali came armed with a klashnikov and started firing on them
in the
room killing Muhammad Yaqub, Zaib-un-Nisa, Mst. Hameeda, Mst. Sharifan
and Mst.
Fateh Khatoon while injuring Mst. Murad Bibi and Jehan Zaib.

It is pertinent
to note that the accused persons did not cross-examine her on one pretext or
the other till such time that she turned hostile. P.W.2 Haseena Begum supported
the
prosecution version. P.W.3 Muhammad Ashraf nephew of Muhammad Yaqub also
affirmed
on oath that he saw Mansoor Ali armed with a klashnikov committing the
offence. Similarly
the prosecution examined P.W.5 Abdul Sattar, P.W.6 Jehan Zaib
injured in the incident,
P.W.7 Muhammad Azim (recovery witness) and P.W.8 Nazir
Ahmad Aftab, a Magistrate
First Class who proved Exh.P.8/A, Exh.P.8/B and
Exh.P.8/C the confessional statement of
the accused and certificate issued by
him. Besides them prosecution examined P.W.9 Gul
Rehman, P.W.10 Abdul Razzaq.
P.W.11 Munir Ahmad and P.W.12 Pir Muhammad.

Thereafter the accused Mansoor
Ali was examined under sections 342, Cr.P.C. as well as
340(2), Cr.P.C. The
remaining accused persons were also examined and accused Mansoor
Ali did not
opt to produce any witness in defence.

At this stage of trial the
accused persons filed a compromise/waiver applications as under:--

27/01/2022, 10:41 1997 P Cr
(1) On behalf of deceased Muhammad Yaqub,

Mst. Hameeda Begum, Mst. Sharifan and
Mst. Fateh Khatoon the compromise was
with Mst. Murad Bibi only surviving heir
(who was sister of Muhammad Yaqub and
aunt of remaining deceased and was also
injured).

(2) For deceased Mst. Zaib-un-Nisa the compromise was effected
with Faiz Muhammad;

(3) The third compromise was filed for
accused Dawar Faiz as far as Jehan Zaib was
concerned from the charge under
section 302, P.P.C. but convicted only under
section 311, P.P.C.

These compromise deeds were
accepted and accused Mansoor Ali was ordered to be
convicted only under section
311 read with section 338-H, P.P.C. to undergo 10 years' R.I.
in the murder
cases.

During hearing of Criminal Appeal
No.46 of 1993 titled ' Mewa Khan v. The State' the entire
evidence was perused
and following orders were passed:--

"During
arguments and perusal of the record it transpired that Special Case No.210
of
1992 decided by the learned Special Judge Suppression of Terrorist Activities,
Balochistan, Quetta, Mansoor Ali son of Mehr Ali compromised the matter but
convicted under section 311 read with 338-E, P.P.C. to undergo R.I. for 10
years.
Besides, he has been awarded under section 307, P.P.C. to undergo 7
years' R.I.
with fine of Rs.5,000 to be paid to Jehanzaib or in default to
further suffer 6 months'
R.I. Sentences were also ordered to run concurrently.
Upon this we issued notice to
learned Advocate-General, Mr. S.A.M. Quadri as
well as Mr. M.A. Chishti,
Advocate to assist us whether the sentences awarded
to the convict in case where 5
persons have been killed is sufficient and
legal.

Today we have
heard Mr. S.A.M. Quadri, Advocate as well as learned Advocate-
General. The
pertinent question for determination was whether this Court has
jurisdiction to
issue notice. After perusal of section 439, Cr.P.C. read with Article
203 of the
Constitution of Islamic Republic of Pakistan we are satisfied that this
Court
has the jurisdiction, if it is satisfied with the material before it on record,
to
issue notice. As such in exercise of our powers under the aforementioned
sections/provisions of law we issue notice to Mansoor Ali convict as to why
sentences awarded to him may not be enhanced or to run
consecutively/separately.
We are fortified in our view by reported judgment of
this Court in PLD 1987 Quetta
51."

Thus suo motu revision was registered
and Mr. Raja M. Afsar, Mr. M.A. Chishti were
appointed as amicus curiae. Notice
was also given to Additional Advocate-General and
thereafter several notices
were given to convict Mansoor Ali. But despite service, he did not
27/01/2022, 10:41 1997 P Cr
engage a
counsel till he was given notice that if he failed to engage a counsel of his
own
choice then the Court had no other option but to appoint a counsel for him.
Mr. Ehsanul Haq
was appointed his counsel who had been appearing on his behalf
in the trial Court and then
Mansoor Ali also gave his consent upon Ehsanul Haq.

Another important aspect for
taking suo motu action was that Mr. M.A. Chishti, Advocate
and Additional
Advocate-General, Balochistan while appearing before us in case of Mewa
Khan
pointed out that Special Judge Suppression of Terrorist Activities,
Balochistan, Quetta
while deciding Special Case No.210 of 1992 made
observations which are in contravention
of Muhammadan Law by declaring the
convict as the person to usurp or to inherit the
property of the deceased whom
he had killed: These observations, according to learned
Additional
Advocate-General as well as Mr. M.A. Chishti were not warranted in the peculiar
circumstances of the case, therefore, we issued notice and took cognizance in
our suo motu
jurisdiction.

However, in this suo motu
revision we are not concerned with other accused persons except
Mansoor Ali who
was charged for murdering 5 persons as mentioned hereinabove.
According to
observations made in the judgment by the trial Court the cross-examination of
Mst. Murad Bibi who fully implicated the accused with commission of 5 murders
was
hopelessly delayed by the defence till such time that she was shaken for
unknown reasons.
The said observations are hereby reproduced:--

"I may
recall that in her examination-in-chief implicated fully the accused persons
with
the murders ' as well as injuring her and Jehan Zaib with a klashnikov on
17th July,
1990. Then it seems from the record, that this case was adjourned on
one pretext or
the other at the instance of the defence counsel' for
cross-examination, which could
be done only on 6th October, 1990, wherein she
was shaken, may be due to the
reasons unknown to us, but the compromise on the
face of it has been effected."

Similarly at page 11 of the
judgment the following observations as regards grabbing the entire
property
after wiping the whole family members were made as under:--

"The motive
behind this offence has been fulfilled as deceased Muhammad Yaqoob's
whole
family has been wiped away for ever, and the property left will be usurped by
the accused persons directly or indirectly, in one way or the other."

Thus from the circumstances it
appears that the accused killed his real uncle and his entire
family for the
sole purpose of getting their property.

Lengthy arguments were addressed
by learned amicus curiae as well as Additional
Advocate-General on the question
of exercise of power under suo motu revision jurisdiction.
They were almost
unanimous on the point that this Court has ample powers to call for and
examine
record of any proceedings pending before any inferior criminal Court situate
within
27/01/2022, 10:41 1997 P Cr
the local limits of its or his jurisdiction for the purpose of

satisfying itself or himself as to the
correctness, legality or propriety of
any finding, sentence or order recorded or passed. It was
also argued that
since an appeal titled as ' Mewa Khan v. The State' was filed hence need
was
felt to call for record of the trial Court in order to examine the legality or
propriety of the
proceedings as well as the order/judgment passed by learned
Special Judge, Suppression of
Terrorist Activities, Balochistan which is a
Criminal Court.

Similarly Mr. Ehsanul Haq,
learned counsel for convict Mansoor Ali also opined that the
entire question is
open before the Court after taking upon itself to exercise suo motu
jurisdiction. He, therefore, argued that the sentence awarded to Mansoor Ali to
suffer R.I. for
10 years as Tazir under section 311 read with section 338-E,
P.P.C. can be set aside after the
Court is satisfied; that the sole legal heir
Mst. Murad Bibi, while exercising her right of waiver
had pardoned the convict.
Thus as far as exercise of suo motu revisional jurisdiction, is
concerned,
there is no cavil that a Division Bench of this Court has jurisdiction to call
for
record of a particular case in order to find the propriety or legality of
the order passed or
judgment made.

Now we proceed to dilate upon the
important legal questions which arise for determination in
this petition as
under:--

(1) Whether compromise with Mst. Murad Bibi
was validly made and lawfully accepted?

(2) Whether as observed by learned trial
Court, the convict responsible for murdering 5 of
his relatives was entitled to
right of inheritance of the victims' property?

Dilating upon the second question
first suffice to observe that a person committing homicide is
excluded from
inheriting the property of the victim. Under principles of Muslim Law of
Inheritance one of the bar to inherit the property is homicide. This principle
is based on
Hadith

In his Treatise, Dr.
Tanzil-ur-Rehman on Islamic Laws of Hudood, Qisas, Diyat at page 344
(Part II)
mentions this fact as under:--

Besides out of several
authorities on the point, PLD 1981 Azad J&K 49 can be conveniently
quoted
in support thereof. It is thus concluded that the convict who intended to grab
the
property of his real uncle and cousins is deprived under Muslim Law of
inheritance to inherit
their property. Observations by the trial Court made to
said effect are, therefore, not tenable
in law.

Now attending to the main issue
whether compromise with Mst. Murad Bibi, an old lady who
was injured in the
incident and who entered the witness- box to implicate Mansoor Ali for
committing murder of 5 persons later on waived her right of Qisas, has been validly
made and
lawfully accepted.
27/01/2022, 10:41 1997 P Cr

For proper appreciation of the
proposition we may take benefit from judgment as reported in
PLD 1991 Lahore
317 Wherein the history of the Criminal Law (Amendment) Ordinance
was traced.
It was noted that as a result of the judgment of Shariat Appellate Bench of the
Supreme Court, dated 5-7-1989 (PLD 1989 SC 633) the President of Pakistan was
pleased to promulgate Criminal Law (Amendment) Ordinance, 1990 (Ordinance IV of
1990) wherein in sections 54, 55 of the Pakistan Penal Code and section 345 of
Code of
Criminal Procedure amendments were introduced and section 402-C was
added to the
Criminal Procedure Code and the Second Schedule thereof was also
amended accordingly.
Thus, section 345, Cr.P.C., which would be relevant for
the disposal of present petition was
amended whereby inter alia the heirs of
the victim were given right to compound the offence
of murder. Similarly on 5th
of September, 1990 the Criminal Law (Second Amendment)'
Ordinance, 1990
(Ordinance VII of 1990) was promulgated by the President of Pakistan
and thus
for the offence of murder and hurt punishment as provided in Sharia were
brought in
conformity with the Injunctions of Islam. Sections 53, 299 to 338 of
Pakistan Penal Code
were substituted while sections 337, 338 and 381 of the
Code of Criminal Procedure were
amended to the effect that the sentence of
death shall not be executed if the heirs of the victim
pardon the victim of
enter into a compromise even at the last moment prior to execution of
sentence.

The Ordinance VIII of 1990 (i.e.
Criminal Law (Third Amendment) Ordinance was
promulgated where section 345,
Cr.P.C. was also amended.

Besides this brief history, the
law as it emerges now contains provisions of waiver (Afw of
Qisas in
Qatl-i-Amd) (section 309) and compounding of Qisas (Sulh) in Qatl-i-Amd
(section
310). However, the modus operandi is mentioned in section 338-E and
section 311, P.P.C.
For the sake of convenience section 338-E and section 311,
P.P.C. are reproduced below:--

"338-E.
Waiver or compounding of offences.--- Subject to the provisions
of this Chapter
and notwithstanding anything contained in section 345 of the
Code of Criminal
Procedure, 1898, 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 offence:

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.

311 Ta'zir after waiver or compounding
of right of Qisas in Qatl-i-Amd.--
Notwithstanding anything contained
in section 309 or section 310 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 ten years as Ta'zir:
27/01/2022, 10:41 1997 P Cr

Provided that,
the Court may punish an offender who is previous convict, habitual or
professional criminal, with imprisonment of either description for a term which
may
extend to fourteen years as Ta'zir."

The record was called for in
order to peruse the nature of compromise or waiver allegedly
arrived at by the
sole legal heir namely Mst. Murad Bibi of the 5 deceased persons. It
appears
that she was injured in the incident whereas her real brother Yaqub was killed
alongwith her 3 daughters and his wife.

In order to determine whether the
learned trial Court passed proper orders on the affidavit
filed by the sole
surviving legal heirs Mst. Murad Bibi, two important features of the case
come
to lime light, first the factual aspect and the second legal aspect.

Attending to the factual aspect it
is revealed from the record that a "compromise for" as
prescribed by
this Court has been filed but it neither contains the signatures nor
thumb-
impression of Mst. Murad Bibi rather it is signed by convict Mansoor
Ali alone (underlining is
ours). However, an affidavit has been attached
with it, allegedly sworn by Mst. Murad Bibi
and attested only by an Oath
Commissioner in which she has stated to have forgiven the
accused persons
without receiving any compensation but in the name of Almighty Allah.
Thus, the
compromise form is not signed by Mst. Murad Bibi. On the affidavit, however, we
found her thumb-impression.

Besides there is an application
filed by complainant Jehan Zaib (injured) and who is also
related to the
parties, which was submitted to the trial Court herein it was stated that Mst.
Murad Bibi has lost her senses and became insane and thus become incapable to
be Wali of
the victims. From perusal of record we did not find any order passed
on this application.

As to legal aspect, bare perusal
of judgment would indicate that in fact the learned trial Judge
was not
satisfied with compromise but he accepted it simply because he thought that as
and
when compromise is filed it must be accepted. This conclusion is drawn on
the basis of
following observations made in the judgment delivered by the trial
Court:--

"The
compromise for the deceased Zaib-un-Nisa with Faiz Muhammad is also a
dubious
character, because, the son of Faiz Muhammad -- Dawar Faiz was a co-
accused in
this very case but on the face of it, the compromise was effected.

Now I would
revert to the special circumstances of the case. Legally speaking
compromise is
generally effected with the legal heirs of the deceased persons,
primarily that
the bad blood between the parties is to be eradicated, and the parties
are
given a chance to promote peace between them and develop good relations.
Secondly the compromise is effected with the spirit, that the legal heirs be
compensated by the accused party being some sort of consolation. Both the
27/01/2022, 10:41 1997 P Cr
conditions
are not applicable to the present case neither any of the deceased family
have
been left to develop good relations with the accused, nor any compensation has
been given to Murad Bibi, who is equally related to deceased Muhammad Yaqoob
and accused Mehar Ali, and accused Mansoor. The motive behind this offence has
been fulfilled as deceased Muhammad Yaqoob's whole family has been wiped away
for ever, and the property left will be usurped by the accused persons directly
or
indirectly, in one way or the other. It is perhaps such circumstances which
have
pr8vailed upon the Legislators when they have introduced section 311,
P.P.C. read
with section 338-E, P.P.C. wherein although Qisas has been waived
due to the
compromise, but this accused has committed such a heinous offence,
cold-blooded,
premeditated and ultimately have fulfilled the motive behind the
offence, wiping out
the whole family of deceased Muhammad Yaqoob, that he must
be punished under
Ta'zir. "

The question would arise whether
any compromise or waiver would be effective and binding
upon the Court and the
Court had no discretion in the matter but to accept the compromise
or waiver as
and when it is filed.

It may be observed that under the
law as is prevalent now comprising of section 345, Cr.P.C.
read with sections
309 and 310, P.P.C. the legal heirs of the deceased/victim are entitled to
compromise the offence or to waive the right of Qisas but obviously this right
can be
exercised only when the Wali is adult as well as sane. In the instant case
an application has
been filed that Mst. Murad Bibi has lost her senses and has
become insane. The course open
to the learned trial Judge was to dispose of
this application in either way. The best possible
way was to refer Mst. Murad
Bibi to a Medical Board in order to determine whether she is
sane or insane.
The order on waiver application could only be passed after receipt of such
report by the Medical Board in view of the application of insanity filed by the
complainant.
The learned trial Court did not refer Mst. Murad Bibi to any
Medical Board, thus the
application remained undisposed. We are, therefore, of
the firm view that Mansoor Ali could
not have been acquitted of the charge
under section 302, P.P.C. for committing murder of five
persons without first
determining whether sole surviving legal heir Mst. Murad Bibi was sane
or
insane. Her own statement has not been recorded as regards waiver and only an
affidavit
which has been attested by an Oath Commissioner and not attested by
District Magistrate or
M.P.A. of the area as is prevalent procedure in cases of
compromise or waiver has been
accepted. On this basis alone the judgment is not
sustainable in law because sanity of Mst.
Murad Bibi the sole legal heir
competent to compound or waive the right of Qisas has been
challenged.
(Although Mehar Ali is the real brother of the deceased but he was involved in
this case and challaned, therefore, he lost his right of compromise or waiver).

It may further be observed that
under section 345, Cr.P.C. the compounding of offence is
always with the
permission of the Court before which any prosecution for such offence is
pending. Section 345(2), Cr.P.C. is quite clear on the point. Even otherwise it
is question of
common legal practice that the Court must satisfy itself about
the voluntariness or validity of
27/01/2022, 10:41 1997 P Cr
right of waiver or compounding. In certain

cases by duress or coercion the legal heirs are
some times pressurized to
compound the offence or waive right of Qisas against influential
accused. In
such event it is trial Court to satisfy the voluntariness of exercise of right
of waiver
or of compounding. It is but intrinsic because, in other words,
section 309 or section 310,
P.P.C. may be misused. We have already stated that
the learned trial Court has reservations
in its mind about the compounding of
offence as observed by it in the judgment not only once
but at different places
of the judgment. Still the trial Court accepted the affidavit and ordered
acquittal merely because the same had been filed. This cannot be the object of
section 309 or
section 310, P.P.C. However, in cases where the legal heirs of
the victim voluntarily enter into
a compromise or exercise right of waiver for
good relations of the remaining family members
or of the parties or for any
other lawful object, the same shall have to be accepted.

Yet another important aspect is
that the Court is not bound in all circumstances to accept a
right of
compromise as was done in the instant case. It was accepted merely because, the
Court observed that "on the face of it that compromise has been
effected".

From perusal of judgment it seems
that the trial Court had not pragmatically or objectively
applied its mind on
the facts and circumstances of the case. So much so that the Court failed
to
make a distinction between section 309 and section 310, P.P.C. i.e. the right
of
compounding of Qisas (Sulh) or right of waiver or compounding. The nature of
the affidavit
filed by Mst. Murad Bibi is also confusing. It is simultaneously
compounding as well as
waiver. In any case the Court has to make observations
whether right has been waived or it
has been compounded. The perusal of
judgment indicates nowhere such a distinction.
However, the Court has stated
that the compromise is accepted although there is no
compromise filed. In other
words to be more precise and technical, the Court did not accept
the right of
waiver but accepted compounding of the offence. The net conclusion would be
that the proceedings were not properly conducted by the trial Court as such.

Besides we find sufficient force
in "the argument of learned Additional Advocate-General that
in case the
only surviving heir is insane then it is the State which becomes the Wali of
the
victim. However, since the same was not determined by the trial Court, therefore,
at
revisional stage it is difficult for us to say whether Mst. Murad Bibi was
sane or insane at the
time of filing of affidavit to waive her right of Qisas.

From the above discussion we have
come to the conclusion that acceptance of so-called
waiver by Mst. Murad Bibi
was illegal and thus untenable in law. The impugned judgment to
the extent of
Mansoor All's acquittal under section 302, P.P.C. is illegal and not
sustainable in
law, as such the same is set aside.

Mr. Ehsanul Haque appearing on
behalf of convict Mansoor Ali while relying on PLD 1991
SC 202 contended that
after acceptance of compromise the only course left with the trial
Court was to
acquit the accused person. This question hardly requires any determination
because we have declared as illegal the acceptance of so-called
compromise/waiver.
27/01/2022, 10:41 1997 P Cr
However, we have perused the said judgment and with respect

we may observe that said
judgment is not applicable in the present case,
firstly because, in the cited case, the legal heirs
of the victim after receipt
of compensation compounded the offence, which was accepted. In
the instant case
it is not a case of compounding, of offence but an exercise of right of waiver
allegedly exercised by Mst. Murad Bibi. Secondly, I about Mst. Murad Bibi an
application
has been made by complainant that she is insane. Thirdly, the
compromise form is not signed
by Mst. Murad Bibi. Such facts were not found in
PLD 1991 SC 202, therefore, the ratio
decidendi of the same shall not apply in
the present case.

As to the submission of Mr. Ehsan
that after acceptance 'of waiver Mansoor A1i could not
have been convicted for
Ta'zir. This question is now open to the trial Court and section 311
read with
section 338, P.P.C. is quite clear that Court can pass such sentence keeping in
view
the circumstances of the case.

It may be clarified that Court
has also convicted Mansoor Ali under section 307, P.P.C. for
inflicting
injuries with klashnikov to complainant Jehan Zaib who did not compound the
offence. Charge was proved on the basis of overwhelming evidence of prosecution
as well as
confessional statement of Mansoor Ali. Mansoor Ali has not filed any
appeal challenging his
conviction under section 307. P.P.C. He was thus awarded
sentence of 7 years' R.I. with a
fine of Rs.5,000 to be paid to injured Jehan
Zaib or in default to undergo another 6 months'
simple imprisonment. This
conviction has not been challenged and we do not find any illegality
in the
same. Thus conviction under section 307, P.P.C. of Mansoor Ali would remain
intact
and run independently.

However, we set aside the
judgment to the extent of acceptance of right of waiver in 5
murders as Jehan
Zaib complainant who is equally related to deceased persons has
specifically
alleged that Mst. Murad Bibi has lost her sanity, therefore, she was
incompetent
to exercise her right of waiver. Resultantly the case of murders is
remanded to Special Judge,
Suppression of Terrorist Activities, Balochistan to
proceed in accordance with law by
referring Mst. Murad Bibi to Medical Board in
order to find out whether she is sane or insane
under his own supervision.
Further proceedings be drawn in accordance with law. In case the
Medical Board
holds that Mst. Murad Bibi was insane, the trial Court after hearing the
parties shall pronounce judgment on the available evidence on record, and in
accordance
with law.

Consequently the case of 5
murders allegedly committed by Mansoor Ali are remanded to
the Special Judge,
Suppression of Terrorist Activities, Balochistan, at Quetta for disposing of
the same on the available evidence if it was found that Mst. Murad Bibi is
insane by the
Medical Board. Record be immediately returned and expeditious
disposal is expected from
the trial Judge of this case.

Petition is disposed of in the
aforesaid terms

27/01/2022, 10:41 1997 P Cr
N.H.Q./588/Q Case
remanded

27/01/2022, 10:41 1997 P Cr

1997 P CRLJ 247

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

1997 P CRLJ 247

Uploaded by

Copyright:

Available Formats

27/01/2022, 10:41 1997 P Cr

1997 P Cr. L J 247

----S. 345---Penal Code (XLV of

PLD 1987 Quetta 51; Islamic Laws

abscond from the scene

(1) On behalf of deceased Muhammad Yaqub,

the local limits of its or his jurisdiction for the purpose of

right of waiver or compounding. In certain

However, we have perused the said judgment and with respect

You might also like