Heirs of Victim and Heirs of Wali

PLJ 2007 Cr.C. (Lahore) 967 (DB)

Present: Kh. Muhammad Sharif and Asif Saeed Khan Khosa, JJ.

AHMAD NAWAZ alias GOGI--Appellant

versus

STATE--Respondent

Crl. A. No. 1751 of 2005 & M.R. No. 765 of 2005,

decided on 1.11.2006.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 305(a)--Provisions--Difference of heirs--Heirs of a victim are surely different from heirs of a wali of the victim. [P. 972] A

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

----S. 345--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 305(a) & 302(b)--Determination of wali--Provisions of--Heirs of wali and heirs of victim--Differences--Consanguine sisters can be termed as legal heirs for the purpose of right of qisas/diyat--Validity--Right of inheritance--Compromise--Conviction and sentence--Challenge to--Application u/S. 345 Cr.P.C.--Deceased was unmarried and survived mother and father--Late father had four wives--Right of compromise--Spirit of qisas and diyat--Quench the thirst of revenge of the immediate heirs of the victim--Right to enter into compromise or otherwise cannot be extended to any other remote relative of the deceased who may not inherit the property from the deceased--Subsequent stage become entitled to inherit property from heir of the deceased--Compromise arrived between parties was genuine, without coercion duress--Permission was granted to compound the offence and conviction and sentence was set aside.   [P. 973] B

Mian Muhammad Sikandar Hayat and Mr. Waqar-ul-Mohsin Lak, Advocates for Appellant.

Syed Zahid Hussain Bokhari, Advocate for Respondent.

Mr. Tahir Mahmood Gondal, AAG and Mr. M. Saleem Shad, Advocate for State.

Date of hearing: 1.11.2006.

Judgment

Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No. 1751 of 2005 filed by Ahmad Nawaz, appellant. He was convicted and sentenced by learned Additional Sessions Judge, Hafizabad vide judgment dated 31.10.2005 as under:

Death and to pay compensation to the tune of Rs. Two lacs/-, in default two years SI each under Section 302(b) PPC.

Murder Reference No. 765 of 2005 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.

2.  Brief facts of the case are that on 31.7.2003 at about 7 a.m., Ahmad Nawaz, appellant, fired a shot with his 222 rifle which hit Muhammad Mohsin and he died at the spot. Shoaib Nawaz and Shahid Nawaz, co-accused of Ahmad Nawaz also fired at Mazhar and Gulzar with their respective fire-arms and both the injured were admitted to hospital. The complainant of the case was Maqbool Ahmad, father of the deceased.

3.  After investigation, all the four accused namely Ahmad Nawaz, Shahid Nawaz, Shoaib Nawaz and Saif Ullah were put to face the trial. The learned trial Court after conclusion, of the trial, convicted Ahmad Nawaz the appellant as stated above while Shoaib Nawaz and Shahid Nawaz were acquitted of the charge under Section 302 PPC and were sentenced to 10 years RI under Section 324 PPC. We may note here that no appeal has been filed either by the complainant or the State for acquittal of the said two accused under Section 302 PPC.

4.  During pendency of the appeal before this Court, an application under Section 345 Cr.P.C. seeking permission to compound the offence was made. A copy of the said petition alongwith allied documents was sent to learned Sessions Judge, Hafizabad for submission of report after verification and genuineness of the compromise. The report has been received.

5.  According to report, deceased Mohsin Raza was unmarried at the time of occurrence, he was survived by his mother Mst. Bushra Bibi and Maqbool Ahmad, father but Maqbool Ahmad died after the murder of Mohsin Raza so his inheritance devolved upon his sons namely Muhammad Zia-ul-Haq, Muhammad Akmal, Muhammad Mohsin (all minor sons) and Najma Shahzadi, Farhat Bibi, Tahira Bibi, Zaib un Nisa, Mst. Akhtar Begum and Mst. Farah Maqbool.

At this stage, we may observe that Maqbool father of deceased Mohsin Raza had four wives, the first was Mst. Sakina Bibi who had died and there was no issue of the said wedlock, Mst. Zubaida was the second wife, she was divorced, but out of the wedlock, there were two daughters namely Mst. Zaib-un-Nisa and Mst. Akhtar, the third wife was Mst. Irshad Begum, she too was divorced but out of the said wedlock, there is a daughter namely Mst. Farrah Maqbool, the fourth in row was Mst. Bushra Bibi, out of this wedlock part from Mohsin Raza, the deceased, three sons namely Zia-ul-Haq, Muhammad Akmal and Muhammad Nohsin and three daughters namely Najma Shahzadi, Farhat Bibi and Tahira Bibi, are also there. All these three sons and daughters are minors.

In the end of the report, the learned Sessions Judge has reported that Mst. Zaib-un-Nisa, Mst. Akhtar Begum and Mst. Farah Maqbool (all majors) daughters of Maqbool Ahmad from other wives namely Mst. Zubaida and Mst. Irshad Begum have not compounded the offence with the convict-appellant.

It being so, we had asked learned counsel for the parties as also the learned Assistant Advocate General Mr. Tahir Mahmood Gondal, to assist us whether the consanguine sisters can be termed as legal heirs of the deceased for the purpose of right of qisas/diyat.

6.  Learned counsel for the petitioner submits that Maqbool father of deceased Mohsin Raza had four wives, the first was Mst. Sakina Bibi who had died and there was no issue of the said wedlock, Mst. Zubaida was the second wife, she was divorced, but out of the wedlock, there were two daughters namely Mst. Zaib-un-Nisa and Mst. Akhtar, the third wife was Msts. Irshad Begum, she too was divorced but out of the said wedlock, there is a daughter namely Mst. Farrah Maqbool, the fourth in row was Mst. Bushra Bibi, out of this wedlock apart from Mohsin Raza, the deceased, three sons namely Zia-ul-Haq, Muhammad Akmal and Muhammad Mohsin and three daughters namely Najma Shahzadi, Farhat Bibi and Tahira Bibi, are also there. All these three sons and daughters are minors.

Further submits that Mst. Bushra Bibi widow of Maqbool moved an application seeking permission to compound the offence, on the direction of this Court her statement was recorded by learned Sessions Judge, Hafizabad, wherein she had pardoned the convict and with regard to share of the six minors, diyat money in the shape of defence saving certificates has been deposited. Next submits that out of the wedlock of Mst. Zubaida and Mst. Irshad, there are three daughters as mentioned above and these daughters from earlier three wives had no legal right to get the share of inheritance. Learned counsel has referred to Sections 305 and 309 PPC. According to learned counsel, when statement of Mst. Bushra Bibi was recorded by learned Sessions Judge, the six minors children were with her but later on Mst. Farah Maqbool forcibly took away the minor children of Mst. Bushra Begum and that Mst. Bushra Bibi also apprehends danger to her life.

It is argued by learned counsel for the petitioner that Mohsin Raza deceased was unmarried and the law on the subject is that in case a person who has been murdered is unmarried, then- the legal heirs will only be father and mother. According to learned counsel, Maqbool, father of the deceased Mohsin had died after the murder of Mohsin Raza so only Mst. Bushra and children out of her wedlock are the legal heirs. Learned counsel submits that Court has to decide about legal heirs of the deceased on the day when the compromise was filed. He has also referred to Section 61 of Mahommedan Law which categorizes three categories, such as sharers, residuary and distinct kinder. It is maintained that three daughters of Maqbool deceased out of the wedlock of Mst. Irshad and Mst. Zubaida are consanguine sisters of deceased Mohsin Raza and in the presence of real brothers and real sisters of Mohsin Raza, the consanguine sisters are not legal heirs. By referring to Muhammadan Law, learned counsel submits that consanguine sisters would be excluded by full sisters. He has relied upon 1993 CLC 2539.

Elaborating his arguments learned counsel submits that there is no question of inheritance from Maqbool, in fact, Mst. Bushra and her minor children are claiming their inheritance as being real brothers and sisters of Mohsin Raza, the deceased. It is maintained that no civil suit with regard to inheritance of the deceased Maqbool is pending in any Court of law.

Mr. Tahir Mahmood Gondal, learned AAG submits that according to Section 305 PPC, only the legal heirs of Moshin Raza deceased who was murdered would be entitled to share the diyat and not others. He has referred to us PLD 1995 Karachi 05 to submit that there is no dispute regarding the property left by Maqbool, the dispute is only regarding legal heirs of the Mohsin Raza, the deceased and only sisters, brothers and his mother would be entitled to diyat being legal heirs of deceased Mohsin Raza. Learned Law Officer has also referred Mahommedan Law by Syed Ameer Ali Volume II and also placed reliance on 2006 SCMR 1916.

Syed Zahid Hussain Bokhari, learned counsel for Mst. Farah Maqbool submits that allegations levelled by the petitioner against the conduct of Mst. Farah are baseless, the minor children are with Mst. Farah, till today, no effort has been made to get the minors back, his clientess had been declared to be legal guardian of six minors by competent Court, the said guardianship certificate has not been challenged as yet; a report was lodged by one of the six minors that his mother Mst. Bushra has been abducted for the last four days and her whereabouts are not known and after death of Maqbool, the right of qisas and diyat would devolve upon all legal heirs of Maqbool. It is submitted that the properties left by Maqbool have already been shared by all the legal heirs including Mst. Bushra and the six minor children; on the death of Maqbool, the right devolves upon Farah Maqbool so his clientess cannot be ousted from getting the share of diyat. Learned counsel submits that if the compromise is allowed, it would amount to Fisad fit arz and would defeat the very purpose of harmony between the parties. Further submits that Maqbool appeared before the trial Court, supported the case set up in the FIR and till his death he struck to his stand and that during his lifetime, Mst. Bushra did not dare to enter into a compromise. It is maintained that Mst. Farah will step in to the shoes, of Maqbool, father of Mohsin Raza who was murdered. According to learned counsel, compromise at this stage would smash the thread of the family. Concluding his submissions, learned counsel submits that this Court can still refuse to allow compromise and discretion lies with the Court; that this compromise is result of coercion, under influence and not voluntary; Mst. Bushra is living with the accused, she is under pressure and that she is not caring for her minor children.

7.  We have heard learned counsel for the parties at great length and attended to their submissions with care. The moot point begging resolution in this case is whether the consanguine sisters can be termed as legal heirs for the purpose of right of qisas/diyat. Diyat in the instant case is that of Mohsin Raza, the deceased who was real son of Mst. Bushra and the remaining six minor children (three brothers and three sisters) out of the wedlock of Mst. Bushra who had sought permission to compound the offence. Mst. Bushra real mother of Mohsin Raza, the deceased had appeared before the Sessions Judge, not once but twice/thrice and made a statement that she had forgiven the murderer of her son. No objection whatsoever was raised at that time. Mst. Farah Maqbool, is daughter of Maqbool deceased from the. wedlock of Mst. Irshad Begum, whom Maqbool had divorced.

At  the very outset, we may here reproduce Section 305 PPC--

"305. Wali.--In case of a qatl, the wali shall be--

(a)   the heirs of the victim, according to his personal law but shall not include the accused or the convict in case of qatl-i-amd if committed in the name or on the pretext of honour; and

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

A bare perusal of the above quoted section clearly states that in case of a qatl, the Wali shall be the heirs of the victim, according to his personal law" and the said provisions do not contemplate that the heirs of an heir of the victim shall also be wali of the victim. An heir of a person is understood to be a person who is entitled to inherit the property of the deceased at the time of his death. In the case in hand the inheritance of the victim automatically opened upon his death and at that time, the only heirs of the victim were his father and mother and thus the property of the deceased automatically devolved upon the said heirs of the victim. After devolving of the property of the victim upon the said heirs the inheritance of the victim had been exhausted and there was nothing left for any body else to inherit from the victim. Keeping in view the spirit of the provisions of Section 305(a) PPC the heirs of a victim are surely different from the heirs of a wali of the victim. In the present case, the consanguine sisters were to inherit from the father of the victim namely Maqbool Ahmad and not from Mohsin Raza victim himself and thus they were the heirs of Maqbool Ahmad and not of the victim namely Mohsin Raza. It is not disputed that the said consanguine sisters had not and could not inherit the property of Mohsin Raza as they were not his heirs at the time of his murder. What the consanguine sisters are claiming before us is a right to effect or refuse a compromise with the appellant which right they claim to have inherited from Mohsin Raza's father namely Maqbool Ahmad and they are not claiming any right to inherit the property of Mohsin Raza directly. According to the spirit and rationale of the provisions of Section 305 (a), PPC a wali of the victim is the person who is entitled to inherit the property of the victim and the interpretation of the said provisions cannot be stretched to include in the definition of wali a person who claims to have inherited the right of compromise possessed by the wali. No legal provision has been  produced  nor any reference to the Islamic Jurisprudence has been made before us to support such a stretched interpretation of the provisions of Section 305 (a) PPC. Apart from that the spirit of the Qisas and Diyat laws is to quench the thirst of revenge of the immediate heirs of the victim and thus the right to enter into a compromise or otherwise cannot be extended to any other remote relative of the deceased who may not inherit the property from the deceased at the time of his murder but may at some subsequent stage become entitled to inherit some property from some heir of the deceased upon the death of such heir.

At this stage, Syed Zahid Hussain Bokhari, Advocate representing Mst. Farha Maqbool submits that six minor children have not accepted the compromise. We may observe that we have gone through the report wherein Mst. Bushra had made a statement forgiving the convict and that six minors were residing with him. The diyat amount representing the share of minors has been fully protected by purchasing defence saving certificates in the names of the minors according to their share. The learned AAG who was asked to assist the Court as an intricate question of law is involved in this case, also supports the submissions made by learned counsel for the petitioner.

For what has been discussed above, we hold that the compromise arrived at between the parties is genuine, without coercion duress and we accordingly grant permission to compound the offence, as a result whereof, the conviction and sentence recorded by the trial Court vide impugned judgment against the appellant Ahmad Nawaz is set aside and he is acquitted of the charge. The death sentence is not confirmed and Murder Reference is answered in the Negative.

The appellant Ahmad Nawaz is in jail. He shall be released forthwith, if not required to be detained in any other case.

(F.F.)      Order accordingly.