ISLAMABAD - The Supreme Court has asked the federal government to make amendment into the matter pertaining to right of entering into compromise by the heirs of a deceased ‘wali’ of a victim in Ta’zir cases. Section 345(2) of Criminal Procedure Code (CrPC) provides that an offence of qatl-i-amd (intentional murder) under section 302 of Pakistan Penal Code (PPC) may be compounded by “the heirs of the victim”.

But the Section 345(2) of CrPC does not provide for devolving of such capacity to compound on an heir of an heir, the wali, of the victim.

The top court observed that it would not like to embark upon judicial legislation by supplying the relevant omission in law through the means of interpretation.

“Let this responsibility rest where it lies and we would not like to encroach upon the domain of the legislature in this regard,” the judgment authored by Chief Justice Asif Saeed Khosa observed. 

“We, therefore, refer this aspect of the matter to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad so that the federal government may consider getting the relevant law amended by the Majlis-e-Shoora (Parliament) appropriately, if so advised.”

The 28-page judgment is pronounced in the case, wherein brothers of a murdered Muhammad Aslam claimed that the widow and son of deceased could not enter into compromise with other party because the father of Aslam, who also later passed away, had denied entering into any compromise. 

The case was heard by a seven-judge larger bench and the judgment also comprises additional note of Justice Syed Mansoor Ali Shah.

It has been observed that devolving of a right of Qisas, waiver or compounding on the heir of a dead wali, a person entitled to claim Qisas, of the victim is recognised in cases of Qisas but is not permitted or recognized in cases of Ta’zir.

“Claiming Qisas is a right in Islamic dispensation whereas compounding in a case of Ta’zir is a concession subject to permission or leave of the relevant court in serious offences,” it added. A right in law ordinarily devolves upon an heir but a concession extended to a particular person is not to devolve on another unless the law expressly provides for the same.

“We entertain no manner of doubt that while expressly providing for some principles applicable to compounding of offences in cases of Qisas and while omitting to expressly provide for the said principles vis-à-vis cases of Ta’zir the legislature was conscious of the difference between the two concepts and their requirements,” it added.

“The silence of the legislature in this regard speaks, and speaks quite loudly, and we as a Court of law cannot ignore it or override it by transposing the principles applicable to one regime of law to the other. We cannot shut our eyes to the clear provisions of section 345(7), CrPC according to which in a case of Ta’zir “No offence shall be compounded except as provided by this section,” it added.

The PPC provides for and recognizes two distinct and separate regimes in the criminal justice system of the country and they pertain to cases of Qisas and cases of Ta’zir depending primarily upon the standard of evidence required and produced in a criminal case.

The judgment noted that the concept of wali relevant to a case of Qisas is not relevant to a case of Ta’zir which belongs to a different regime of criminal law and is governed by separate and distinct principles.

“It has to be understood very clearly that in cases of Qisas the term wali means the entire body or group of persons who are entitled to claim Qisas for a qatl-i-amd (intentional murder) and such persons include those who are heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolves upon death of an heir of the victim even if such heirs of the heir of the victim do not themselves inherit from the victim directly,” it added.

“In cases of Ta’zir the law has conferred the capacity to compound only upon the heirs of the victim and has not provided for devolving of the capacity to compound upon an heir of an heir of the victim as has been provided in cases of Qisas,” the judgment stated.

In cases of Qisas, the top court said that the right of Qisas as well as the right to waive or compound the offence vest in the victim or his wali.

“Whereas in cases of Ta’zir the serious offences committed in respect of human life or body were originally not compoundable in our law but subsequently only a limited concession was made in that regard by the State by amending the law and providing for compounding of most of such offences by the victim or his heirs,” it added.

It added: “even while making such concession and providing for composition of such offences no right to compound was conferred on the victim or his heirs and any composition proposed by the parties was made subject to permission or leave of the relevant court which may refuse to grant the requisite permission or leave in the peculiar circumstances of a given case.”

Partial compromise is permissible in a case of Qisas but is not allowed in a case of Ta’zir, the top court said.

The top court observed that the concept of devolving of the right of Qisas upon an heir of a wali of the victim relevant to a case of Qisas is not applicable to cases of Ta’zir.

Regarding the instant case, the top court stated that Waryam, being the father and an heir of deceased Aslam, had a capacity to compound the relevant offence but he had not compounded the offence during his own lifetime and upon Waryam’s death his capacity to compound stood exhausted.

After Waryam’s death his heirs could not be treated as heirs of deceased Aslam and his only heirs left in the field are surviving heirs, the widow and son, who could inherit directly and compound the offence throughout their lifetime irrespective of timing of Waryam’s death.

“In this case of Ta’zir only the heirs of the deceased could compound the offence of murder and the appellant and his brothers, all brothers of Muhammad Aslam deceased, did not and could not inherit from Muhammad Aslam deceased either directly or through their father and, thus, they never qualified as “heirs of the victim” for the purposes of section 345(2), CrPC.”

Besides referring the matter to federal government for the amendment, the top court also dismissed the appeals of Aslam’s brothers.