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 P L D 2003 Karachi 277
MUHAMMAD SHARIF Versus THE STATE
Criminal Revision Application No.D-59 of 2002

S.345(6)---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 34 & 338-F---Qatl-e-Amd---Waiver---Compounding of offence---Application under S.345(6), Cr.P.C. was submitted before the Trial Court during trial praying for the acceptance of the compromise between the legal heirs of deceased and the applicant (one of the five accused involved in the murder of the deceased)---Compromise application was signed by the widow and two brothers of the deceased as guardian of minor daughter of the deceased--­Recovery and distribution of Diyat---Principles---If, more than one offenders commit Qatl-e-Amd, then the Diyat shall be distributed equally on the offenders and if recovery of Diyat from one or more offenders is waived then the remaining Diyat shall be paid by the remaining offenders according to their respective shares---Chapter XVI, P.P.C., though contains no provision on the subject, but S.338-F, P.P.C. provides that in the interpretation and application of the provisions of Chap. XVI, P. P. C., and in respect of matters ancillary or, akin thereto, the Court shall be guided by the Holy Qur'an and Sunnah---Recovery and distribution of Diyat was elaborated by the High Court and order passed by tote Trial Court to the effect that applicant should deposit share of minor heir in the entire Diyat, being not in accordance with the law, was set aside.

If more than one offenders commit Qatl-e-Amd, then the Diyat shall be distributed equally on the offenders and if recovery of Diyat from one or more offenders is waived then the remaining Diyat shall be paid by the remaining offenders according to their respective shares.

There is no provision in this regard in Chapter XVI, P.P.C., dealing specifically but, it is provided in section 338-F that in the interpretation and application of the provisions of Chapter XVI, P.P.C. 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. In the absence of any specific provision in P.P.C. for the payment of Diyat by each of the offenders, in case of involvement of more than one offenders in the commission of Qatl-i-Amd and in case of compromise between Wali of the deceased and one of the offenders, the law as contained in Holy Qur'an and Sunnah shall be applied. Since in the present case five persons were named in the F.I.R., four to have committed the actual act of Qatl, while fifth was alleged to have abetted the offence therefore, applicant was required to pay 1/5th of the total Diyat of the deceased. The adult Wali namely widow of deceased forgave her share of Diyat, therefore, the applicant is required to deposit the amount representing share of minor out of 1/5th of the total Diyat.

The order passed by the trial Court to the effect that applicant should deposit share of minor heir in the entire Diyat is not in accordance with the law and is set aside.

Application under S.345(6), Cr.P.C. was submitted before the Trial Court during the trial praying to accept the compromise between the legal heirs of deceased and the applicant (one of the five accused involved in the murder of the deceased)--­Compromise application was signed by the widow of the deceased and by two brothers of the deceased as guardians of minor daughter of the deceased---Nothing was available on record to show about the Fiqah followed by the heirs of the deceased and it was not shown that the two brothers of the deceased who had signed the compromise as the guardians of the minor daughter of the deceased had entered into any compromise as Wali (heir) of the deceased to the extent of their shares---Effect---High Court by dilating upon the distribution of Diyat money amongst the heirs of the deceased according to both the Fiqhas namely Sunni and Shia, remanded the case to the Trial Court with specified directions to be followed in deciding the issue, keeping in view the provision Ss. 299(e), 305, 323, 330 & 338-F, P.P.C.

In the present case there was nothing on record to show about the Fiqah followed by the heirs of deceased. If deceased and his heirs followed Hanfi Fiqah, then widow and minor daughter were not the only heirs of deceased. According to Hanfi Fiqah if there was any child the wife was to get 1/8th share in the inheritance, while in the case of one daughter only and in the absence of son, the daughter would get 1/2 share and the remaining inheritance would devolve on the residuaries. In the present case two brothers of deceased had signed the compromise application as guardians of minor. However, there was nothing to show that they had entered into any compromise as Wali (heir) of deceased to the extent of their shares. Widow could forego her share to the extent of 1/8 from the Diyat amount payable by applicant. Minor was entitled to 1/2 of the amount of Diyat payable by applicant. The remaining inheritance was the right of brothers of the deceased if father and mother of the deceased were not alive. If father and mother of the deceased were alive then the brothers would be excluded. However, it was a question of fact, which required proper inquiry by the trial Court.

The contention of the applicant that the applicant was required to pay 1/5th share from the entire Diyat of deceased because five persons were named in the F.I. R. was also not tenable. The reason being that, after investigation, four accused persons were found to have committed Qatl of deed and therefore, applicant being one of them was required 1/4th share in the total Diyat of the deceased. Consequent to the above, the case was remanded to Trial Court with following directions:

(1) The trial Court should determine the Wali of the deceased in accordance with the provisions contained in section 305, P.P.C. and ascertain as to who were the heirs of the victim according to his personal/law. An inquiry should be made whether the victim was follower of Sunni Fiqah or Shia Fiqah.

(2) In the light of Fiqah followed by the victim the heirs should be determined keeping in view, that he had left two brothers as well, and in case of Sunni Fiqah the widow and sole daughter were entitled to 1/8 and 1/2 share respectively only in the inheritance and the remaining share was to be inherited by the residuaries; the brothers in the present case, if father and mother were not alive. If father and mother were alive then brothers were to be excluded.

(3) If all the heirs of victim other than minor, including brothers, or in the case of father and mother being alive the parents forego their respective shares in Diyat, then 1/2 share in the amount of Diyat liable to be paid by the applicant shall be got deposited in the Court and invested in some profitable scheme with the direction to pay the investment and profit to the minor after she became adult.

(4) The a cc d was facing trial with three other accused person. He shall be liable to pay 1/4th of the total value of Diyat of deceased as determined by the Court under section 32. P.P.C.

(5) The trial Court shall determine the value of Diyat in the light of the provisions contained in section 323, P.P.C.

Trial Court shall keep in view the provisions contained in sections 299(e), 305, 323, 330 and 338-F, P.P.C.

ORDER

...............

The applicant Muhammad Sharif is facing trial in the Court of learned Sessions/Special Judge for (STA), Larkana alongwith three other accused persons namely, Imdad Ali, Ahmed Ali and Muhammad Bux for the offences punishable under sections 302, 337-H(2) and 34, P.P.C. in Crime No.9 of 2001 Police Station Naudero, District Larkana. They are alleged to have committed murder of deceased Ali Gul. In the F.I.R, another accused namely Buxian son of Umaid Ali was also nominated. It was alleged that the murder was committed at the instance of Buxian. However, after the investigation, police released the accused Buxian and placed his name in Column No.2 of the charge-sheet.

During the course of trial a compromise took place between accused/applicant Muhammad Sharif Jarwar and the legal heirs (Wali) of deceased Ali Zul. It alleged in the revision application that deceased left his widow Mst. Aisha Khatoon and one minor daughter namely, Akhtiar Khatoon as his Heirs/Wali.

An application under section 345(6), Cr.P.C. was submitted before the learned trial Court praying to accept the compromise between the legal heirs of deceased Ali Gul and applicant/accused Muhammad Sharif son of Qaddan Jarwar and acquit him of the charge.

The compromise application was signed by Mst. Aisha Khatoon widow of deceased Ali Gul, Moula Bux and Ghulam Shabbir brothers of deceased Ali Gul as guardian of minor Akhtiar Khatoon, as well as the applicant/accused Muhammad Sharif.

The learned trial Judge disposed of the application by the following order:

"In the present case accused Shareef Jarwar has filed compromise application with the complainant party. As per report of the Mukhtiarkar, deceased has one minor daughter and a wife. Wife of the deceased has waived her right of Qisas and Diyat to the accused, but since one of the legal heirs, of the deceased is minor, I therefore, order that the share of minor heir in the entire Diyat be deposited in the Court within the period of one month -from the date of this order. If the accused failed to deposit the above amount the necessary order will be passed on the compromise application, according to law." .

Being aggrieved with the direction that the share of the minor heir in the entire Diyat be deposited in Court, within a period of one month from the date of order, the applicant has preferred this revision application.

The learned advocates for the applicant have submitted that, the direction for depositing the share of minor in the entire Diyat is not warranted in law. They contended that if there are more than one offenders in a case of Qisas and the Wali of the deceased/victim waives his right of Qisas, against one offender then the said offender is required to pay prorata Diyat, which is to be divided equally among the number of the offenders involved in Qatl-e-Amd, the learned A.A.-G. has supported the contention of learned counsel for the applicant.

We are persuaded to agree with the submission of learned counsel for the applicant. The issue has been discussed by Justice (R) Dr. Tanzil-ur-­Rehman (Retired Chief Justice Federal Shariat Court) in his book Hudood, Qisas, Diyat Wa Tazirat, Second Edition, page 315. 1t is stated that if more than one offenders commit Qatl-e-Amd, then the Diyat shall be distributed equally on the offenders and if recovery of Diyat from one or more offenders is waived then the remaining Diyat shall be paid by the remaining offenders according to their respective share. In support of this view the learned author has referred the following books:

(1) Al-Mughni by Ibn-e-Qadama, Vol.9, page 499.

(2) Al-Muhazzab, Vol.2, page 210.

(3) Badai Al-Sanai, Vol.7, page 255.

The learned advocates for the applicant have submitted that there is no provision in this regard in Chapter XVI, P.P.C, dealing specifically with the issue under consideration but it is provided in section 338-F that in the interpretation and application of the provision of Chapter XVI, P.P.C. 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. They have submitted that in the absence of any specific provision in P.P.C. for the payment of Diyat by each of the offender, in case of involvement of more than one offenders in the commission of Qatl-i-Amd and in case of compromise between Wali of the deceased and one of offenders, the law as contained in Holy Qur'an and Sunnah shall be applied. They have submitted that, since five persons were named in the F.I.R, four to have committed the actual act of Qatl, while fifth was alleged to have abetted the offence therefore, applicant Muhammad Sharif was required to pay 1/5th of the total Diyat of the deceased. The adult Wali namely Mst. Aisha Khatoon widow o deceased Ali Gul, forgave her share of Diyat, therefore, the applicant required to deposit the amount representing share of minor Akhtiar Khatoon out of 1/5th of the total Diyat.

We have carefully considered the contentions raised by the learned advocates for the parties and we are persuaded to agree with them on the proposition of law. The impugned order passed by the learned trial Judge to the effect that applicant Muhammad Sharif should deposit share of minor heir in the entire Diyat is not in accordance with the law and is hereby set aside.

However, on perusal of the material produced before us we are of the view that the Learned advocates for the applicant and the learned trial Judge have not adverted to the correct facts, and have further failed to apply the correct provisions of law. The expression "Wali" in case of Qatl is defined in section 305, P.P.C, as--

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

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

There is nothing on record to show about the Fiqah followed by the heirs of deceased Ali Gul. If deceased Ali Gul and his heirs follow Hanfi Fiqah, then widow and minor daughter are not the only heirs of deceased Ali Gul. According to Hanfi Fiqah if there is any child the wife shall get 1/8th share in the inheritance, while in the case of one daughter only and in the absence of son the daughter will get 1/2 share and the remaining inheritance shall devolve on the residuaries. In the present case we have found that two brothers of deceased namely, Moula Bux and Ghulam Shabbir, have signed the compromise application as guardians of minor Akhtiar Khatoon. However, there is nothing to show that they have entered into any compromise as Wali (heir) of deceased Ali Gul to the extent of their share. Widow Mst. Aisha Khatoon could forego her share to the extent of 1/8 from the Diyat amount payable by applicant Muhammad- Sharif. Minor is entitled to 1/2 of the amount of Diyat payable by applicant Muhammad Sharif. The remaining inheritance is the right of brothers of the deceased if father and mother of the deceased are not alive. If father and mother of the deceased are alive, then the brothers shall be excluded. However, it is a question of fact which requires proper inquiry by the learned trial Judge.

The contention of the learned advocates for the applicant that the applicant is required to pay 1/5th share from the entire Diyat of deceased Ali Gul, because five persons were named in the F.I.R, is also not tenable. The reason being that after investigation, four accused persons were found to have committed Qatl of deceased Ali Gul and therefore, applicant Muhammad Sharif being one of them is required to pay 1/4th share in the total Diyat of the deceased Ali Gul. Consequent to the above discussion, the case is remanded to the learned trial Court with following directions:

(1) The learned trial Court should determine the Wali of the deceased in accordance with the provisions contained in section 305, P.P.C, and ascertain as to who are the heirs of the victim according to his personal law. An inquiry should be made whether the victim was follower of Sunni Fiqah or Shia Fiqah.

(2) In the light of Fiqah followed by the victim the heirs should be determined keeping in view, that he has left two brothers as well, and in case of Sunni Fiqah the widow and sole daughter are entitled to 1/8 and 1/2 share respectively only in the inheritance and the remaining share is to be inherited by the residuaries; the brothers in this case if father and mother are not alive. It father and mother are alive brothers shall be excluded.

(3) If all the heirs of victim other than minor, including brothers, or in the case of father and mother being alive the parents forego their respective shares in Diyat, then 1/2 share in the amount of Diyat liable to be paid by the applicant, shall be got deposited in the Court and invested in some profitable scheme with the direction to pay the investment and profit to the minor after she becomes adult.

(4) The applicant is facing trial with three other accused persons. He shall be liable to pay 1/4th of the total value of Diyat of deceased Ali Gul, as determined by the Court under section 323, P.P.C.

(5) The trial Court shall determine the value of Diyat in the light of the provisions contained in section 323, P.P.C.

While deciding the above points, the learned trial Court shall keep in view the provisions contained in section 299(e), 305, 323, 330 and 338-F, P.P.C.