ISLAMABAD: The Supreme Court has asked the federal government to consider amending relevant laws through parliament to simplify in clear terms the meaning of real heirs or ‘wali’ in the cases of intentional murder or qatl-i-amd.

“In Pakistan Section 345(2) of the Criminal Procedure Code (CrPC) provides that an offence of qatl-i-amd under Section 302 PPC (Pakistan Penal Code) may be compounded (compromise) by the heirs of the victim but does not provide for devolving of such capacity to compound on an heir of an heir of the victim,” observed Chief Justice Asif Saeed Khosa in a judgement he wrote.

The chief justice had presided over a five-judge Supreme Court bench to consider an appeal against the Oct 6, 2010, judgement of the Lahore High Court Multan Bench.

Under the Islamic law of inheritance, the brothers of deceased person did not inherit from him/her directly and even the father of the deceased, though an heir, when died subsequently, the brothers of the deceased would not become the heirs of the deceased, the judgement held.

Keeping in view the facts of the case at hand, the verdict observed that the brothers of Mohammad Aslam, the deceased, did not inherit from him directly even after their father Waryam subsequently died.

Under Islamic law, brothers do not inherit from deceased in qatl-i-amd cases

The brothers stood excluded by a surviving son of the deceased, who was close to the deceased in degree in the matters of inheritance, the judgement explained, adding that in the cases of Ta’zir only the heirs of the deceased could compound the offence of the murder and the brothers of the deceased did not and could not inherit from the deceased either directly or through their father. Thus they never qualified as heirs of the victim for the purposes of Section 345(2) of the CrPC, the judgment held.

The controversy came to light when in Feb 2, 2005, Mohammad Aslam was killed and Ijaz Ahmad was injured in Chak No. 93/WB in the area of Thingi Police Station, District Vehari.

During the hearing of an appeal before the high court against the death sentence awarded to the murderers as well as life imprisonment to another culprit, a compromise was reached between the killers and Ms Razia Bibi and Mohammad Akmal, the widow and son of Mohammad Aslam. The compromise stating that they had forgiven the murderers in the name of Almighty Allah and had no objection to their acquittal from the charges of murder. But the father of the deceased, also a legal heir, however, refused to enter into any compromise.

After the death of the father of the deceased, the compromise was furnished before the high court in 2010 seeking acquittal of the murderers, which was then referred to the district and sessions judge, Vehari, for verification.

The district and sessions judge confirmed that the surviving legal heirs of the deceased had acknowledged their compromise with the murderers but highlighted that during his life, the father had objected to the compromise and after his death the four brothers of the deceased were not agreeable either.

In the wake of the death of the father, the refusal by the brothers of the deceased was irrelevant to the compromise voluntarily entered into by the surviving heirs.

The high court accepted the compromise on Oct 6, 2010, and acquitted the murderers.

Feeling aggrieved of the decision, one of the brothers of the deceased, Mohammad Yousaf challenged the high court order before the Supreme Court to consider whether the brothers of the deceased could be ‘walis’ and the offence of murder could not have been compounded without their concurrence.

Through the judgment, the Supreme Court explained that the concept of devolving of the right of Qisas upon an heir of an heir/wali (brothers of the victim) was not applicable to cases of Ta’zir, and in the absence of any devolving of the capacity to compound the capacity to compound stands exhausted upon the subsequent death of their father.

Being the father and an heir of the deceased, Waryam had the capacity to compound the relevant offence but he had not compounded the offence during his own lifetime and upon his death his capacity to compound stood exhausted and the same was not heritable as Waryam’s heirs were not heirs of Mohammad Aslam because they did not, and could not, inherit from him, the judgment explained.

In cases of Ta’zir, Section 345(2) of the CrPC did not specify any time when compounding of an offence may take place and the provisions of this section did not place any embargo upon compounding of the relevant offence by the surviving heirs of a victim at a time when one or more of the heirs of the victim had already died, the judgment observed.

Placing an embargo upon the surviving heirs of a victim in such a situation may amount to committing violence upon the provisions of Section 345(2) which the court was not ready to commit, the verdict explain.

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 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.

In Qisas the tie of blood with the victim was the governing consideration even if a wali in his devolved capacity was not in a position to directly inherit from the victim. Whereas in Ta’zir the sole consideration for the capacity to compound was the capacity to inherit directly from the victim, the judgment explained, adding that the present case offered a classical example of such a distinction by virtue of Section 307 of the PPC.

In his additional note, Justice Syed Mansoor Ali Shah concurred with the verdict but questioned why should an interpretation be encouraged that restricted the choice or option of the subsequent heirs of the victim to settle a feud and move towards a more harmonious and peaceful life.

“Why deprive the heirs of this right,” the judge asked, adding that any embargo on the exercise of the right to compound under Section 342(2) of the PPC by the subsequent heirs of the victim might not be in consonance with the Islamic law of inheritance.

Published in Dawn, February 24th, 2019