IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa, CJ 
Mr. Justice Mushir Alam  
Mr. Justice Maqbool Baqar 
Mr. Justice Manzoor Ahmad Malik 
Mr. Justice Sardar Tariq Masood 
Mr. Justice Mazhar Alam Khan Miankhel 
Mr. Justice Syed Mansoor Ali Shah 
 
 
Criminal Appeal No. 137-L of 2010 
(Against the judgment dated 06.10.2010 passed by the Lahore High Court, 
Multan Bench, Multan in Criminal Appeal No. 534 of 2005 and Murder 
Reference No. 547 of 2005) 
 
 
Muhammad Yousaf 
… Appellant 
 
versus 
 
The State, etc. 
 … Respondents 
 
 
For the appellant: 
Mr. Muhammad Akram Qureshi, 
ASC 
 
For the State: 
Rana 
Abdul 
Majeed, 
Additional 
Prosecutor-General, Punjab 
 
For respondents No. 2 & 3: 
Mr. Rashid Mehmood Sindhu, ASC 
 
Syed Rafaqat Hussain Shah, AOR 
 
with respondents No. 2 & 3 in 
person  
 
Date of hearing: 
25.10.2018 
 
JUDGMENT 
  
Asif Saeed Khan Khosa, CJ.: One Muhammad Aslam was 
murdered and another namely Ijaz Ahmad was injured in an 
occurrence taking place on 02.02.2005 in Chak No. 93/WB in the 
area of Police Station Thingi, District Vehari and in that regard 
respondents No. 2 and 3, brothers inter se, were booked in case 
Criminal Appeal No. 137-L of 2010 
 
2
FIR No. 19 registered at the said Police Station on the same day at 
the instance of the present appellant/complainant. After a regular 
trial respondents No. 2 and 3 were convicted by the learned 
Additional Sessions Judge, Vehari on 19.07.2005 for the offences 
under sections 302(b) and 324 of the Pakistan Penal Code, 1860 
(PPC) read with section 34, PPC. For the offence under section 
302(b), PPC read with section 34, PPC respondent No. 2 was 
sentenced to death and respondent No. 3 was sentenced to 
imprisonment for life whereas for the offence under section 324, 
PPC read with section 34, PPC both the said respondents were 
sentenced to rigorous imprisonment for 10 years each. The said 
respondents were also ordered to pay a sum of Rs. 1,00,000/- each 
to the heirs of Muhammad Aslam deceased by way of 
compensation under section 544-A of the Code of Criminal 
Procedure, 1898 (Cr.P.C.), to pay a sum of Rs. 1,75,000/- jointly to 
the injured victim namely Ijaz Ahmad by way of Arsh being half of 
the amount of Diyat and to pay a sum of Rs. 50,000/- jointly to the 
said Ijaz Ahmad by way of Daman. It was ordered that in case of 
default in payment of the said amounts respondents No. 2 and 3 
would undergo rigorous imprisonment for a period of 6 months 
each. The benefit under section 382-B, Cr.P.C. was extended to the 
said respondents.  
 
2. 
Respondents No. 2 and 3 jointly challenged their convictions 
and sentences before the Lahore High Court, Multan Bench, 
Multan through Criminal Appeal No. 534 of 2005 which was to be 
heard by a learned Division Bench of the said Court along with 
Murder Reference No. 547 of 2005 seeking confirmation of the 
sentence of death passed by the trial court against respondent No. 
2. During the pendency of that appeal Criminal Miscellaneous No. 
102 of 2009 was filed before the High Court seeking acquittal of 
respondents No. 2 and 3 from the charge under section 302(b), 
PPC read with section 34, PPC on the basis of a compromise 
between the said respondents and the heirs of Muhammad Aslam 
deceased which matter was referred by the High Court to the 
Criminal Appeal No. 137-L of 2010 
 
3
learned District & Sessions Judge, Vehari for its verification. The 
report dated 25.02.2009 submitted in that regard by the learned 
District & Sessions Judge, Vehari showed that Muhammad Aslam 
deceased was survived by his father namely Waryam, his widow 
namely Mst. Razia Bibi and his son namely Muhammad Akmal out 
of whom the father of the deceased had denied entering into any 
compromise with respondents No. 2 and 3 whereas the widow and 
the son of the deceased had confirmed that they had entered into a 
compromise with respondents No. 2 and 3, they had forgiven the 
said respondents in the name of Almighty Allah and they had no 
objection to acquittal of the said respondents from the charge of 
murder on the basis of the compromise. During the pendency of 
Criminal Miscellaneous No. 102 of 2009 Waryam, the father of 
Muhammad Aslam deceased, died and thereafter Criminal 
Miscellaneous No. 431-M of 2010 was filed before the High Court 
seeking acquittal of respondents No. 2 and 3 from the charge of 
murder because all the surviving heirs of Muhammad Aslam 
deceased were agreeable to a compromise with the said 
respondents. The matter of compromise was again referred by the 
High Court to the learned District & Sessions Judge, Vehari for its 
verification. The report dated 12.05.2010 submitted by the learned 
District & Sessions Judge, Vehari in that regard confirmed that the 
surviving heirs of Muhammad Aslam deceased, i.e. his widow and 
son had acknowledged their compromise with respondents No. 2 
and 3, they had forgiven the said respondents in the name of 
Almighty Allah and they had no objection to the respondents’ 
acquittal from the charge of murder on the basis of the 
compromise. The learned District & Sessions Judge, Vehari had, 
however, pointed out in that report that on an earlier occasion the 
father of Muhammad Aslam deceased, an heir of the said 
deceased, had denied entering into any compromise with 
respondents No. 2 and 3 and after his subsequent death his four 
sons namely Muhammad Yousaf, Muhammad Ashraf, Atta Ullah 
and Noor Ahmad, brothers of Muhammad Aslam deceased, were 
not agreeable to a compromise with respondents No. 2 and 3. The 
Criminal Appeal No. 137-L of 2010 
 
4
learned District & Sessions Judge, Vehari was of the opinion that 
the said sons of Waryam and brothers of Muhammad Aslam 
deceased were not heirs of Muhammad Aslam deceased and, thus, 
their refusal to enter into a compromise with respondents No. 2 
and 3 was irrelevant to the compromise voluntarily entered into by 
the surviving heirs of the deceased with respondents No. 2 and 3. 
According to the learned District & Sessions Judge, Vehari the 
acclaimed compromise between the surviving heirs of Muhammad 
Aslam deceased and respondents No. 2 and 3 was voluntary and 
complete. After perusal of the said report and after finding the 
compromise between the surviving heirs of Muhammad Aslam 
deceased and respondents No. 2 and 3 to be voluntary and 
complete a learned Division Bench of the Lahore High Court, 
Multan Bench, Multan accepted the compromise vide judgment 
dated 06.10.2010, partially allowed Criminal Appeal No. 534 of 
2005 filed by respondents No. 2 and 3, acquitted the said 
respondents of the charge under section 302(b), PPC read with 
section 34, PPC on the basis of the compromise and dismissed the 
said appeal to the extent of the convictions and sentences of the 
said respondents for the offence under section 324, PPC read with 
section 34, PPC while answering the Murder Reference in the 
negative. 
 
3. 
Aggrieved of the judgment passed by the Lahore High Court, 
Multan Bench, Multan on 06.10.2010 the appellant/complainant 
filed Criminal Petition for Leave to Appeal No. 1091-L of 2010 
before this Court and on 24.12.2010 the said petition was allowed 
by this Court and leave to appeal was granted in the following 
terms: 
 
“Inter alia contends that the learned High Court has allowed 
compromise of the offence of murder on the application of two 
legal heirs namely Razia Bibi (wife of the deceased) and 
Muhammad Akmal (son of the deceased) notwithstanding the fact 
that the father of the deceased namely Waryam who was alive at 
the time of murder of Sajid [actually Muhammad Aslam] but died 
when the application for compounding the offence was made, his 
heirs were ‘walis’ and the offence could not have been 
compounded without their concurrence. 
Criminal Appeal No. 137-L of 2010 
 
5
 
2. 
Having heard learned counsel for the petitioner at some 
length, leave is granted inter alia to consider whether the heir of 
an heir of the victim could be a ‘wali’ of the said victim and 
whether the law laid down by this Court [actually the Lahore High 
Court, Lahore] in Ahmed Nawaz Vs. State (PLD 2007 Lahore 121) 
would be attracted to the facts of the case in hand?” 
 
On 05.06.2018 it was noticed by this Court that the view of the 
relevant law taken by the Lahore High Court, Lahore in the case of 
Ahmad Nawaz alias Gogi v The State (PLD 2007 Lahore 121) was 
based upon the definition of ‘wali’ contained in section 305(a), PPC 
whereas a different view of the same law subsequently taken by a 
5-member Bench of this Court in the case of Abdul Rashid alias 
Teddi v The State and others (2013 SCMR 1281) did not even refer 
to the definition of ‘wali’ contained in section 305(a), PPC. In this 
background it was felt by this Court on that date of hearing that 
the issue involved in the present case required a fresh look so as to 
render an authoritative pronouncement on the subject and, thus, 
the office of this Court was directed to bring the matter to the 
notice of the then Hon’ble Chief Justice who was requested to 
consider advisability or otherwise of constitution of a Larger Bench 
of at least seven Hon’ble Judges of this Court in order to resolve 
the controversy noted above. It is in this backdrop that the present 
Larger Bench is now seized of the matter. 
 
4. 
We have heard the learned counsel for the parties at some 
length and have gone through the record of this case with their 
assistance besides perusing the precedent cases referred to by 
them. It has been argued by the learned counsel for the appellant 
that in the case of Abdul Rashid alias Teddi v The State and others 
(2013 SCMR 1281) this Court has already declared that the right 
to compound an offence is a heritable right and upon the death of 
a wali of the victim his right devolves upon that wali’s heirs and, 
thus, in the present case upon the death of the appellant’s father 
his capacity of being a wali of Muhammad Aslam deceased had 
devolved upon the appellant and his brothers and, therefore, 
compounding of the offence by the surviving heirs of Muhammad 
Criminal Appeal No. 137-L of 2010 
 
6
Aslam deceased with respondents No. 2 and 3 could not 
materialize unless the appellant and his brothers had joined the 
compounding. He has also argued that the case in hand was a 
case of Ta’zir and by virtue of the law declared by this Court in the 
case of Sh. Muhammad Aslam and another v Shaukat Ali @ Shauka 
and others (1997 SCMR 1307) compounding of the offence of 
murder in the present case could not succeed unless all the heirs 
of Muhammad Aslam deceased, including the appellant and his 
brothers possessing the devolved status of wali upon the death of 
their father, had consented to the compromise. While referring to 
the case of Zahid Rehman v The State (PLD 2015 SC 77) the 
learned counsel for the appellant has maintained that the concept 
of compounding of an offence of murder is common to cases of 
Qisas as well as of Ta’zir and, therefore, the principles applicable 
to cases of Qisas in the matter of compounding of an offence ought 
to be read into cases of Ta’zir as well. He has, thus, prayed that the 
impugned judgment passed by the High Court may be set aside 
and the High Court may be required to decide the issue of 
compounding of the offence of Muhammad Aslam’s murder afresh 
in accordance with the law. The learned Additional Prosecutor-
General, Punjab appearing for the State has also submitted that 
the right to claim Qisas is a heritable right in Islamic law and the 
same stands recognized in the provisions of section 307, PPC and, 
therefore, the offence of murder of Muhammad Aslam in the 
present case could not have been compounded by some of the 
heirs of the victim in the absence of the appellant and his brothers 
on whom the right to claim Qisas had devolved on account of 
death of their father after the murder of Muhammad Aslam. The 
leaned Additional Prosecutor-General has also prayed for setting 
aside of the impugned judgment passed by the High Court and for 
remand of the matter to the High Court for a decision of the matter 
of compounding afresh. As against that the learned counsel for 
respondents No. 2 and 3 has contended that the principles 
applicable to compounding of an offence in cases of Qisas cannot 
be made applicable to cases of Ta’zir which cases are governed in 
Criminal Appeal No. 137-L of 2010 
 
7
the matter by the provisions of section 345, Cr.P.C. and in terms of 
section 345(2), Cr.P.C. the appellant and his brothers were not 
heirs of the victim and, therefore, they had no recognized role to 
play in the matter of compounding of the offence of Muhammad 
Aslam’s murder. He has, thus, prayed for upholding of the 
impugned judgment of the High Court and dismissal of the present 
appeal. 
 
5. 
After hearing the learned counsel for the parties, perusing 
the record of the case with their assistance and going through the 
precedent cases referred to before us we have found it appropriate 
to refer to the relevant statutory provisions first and then to 
discuss the precedent cases on the subject. The Pakistan Penal 
Code, 1860 (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 distinction between the separate regimes of 
Qisas and Ta’zir cases was clearly elucidated by this Court in 
many cases including the cases of Sh. Muhammad Aslam and 
another v Shaukat Ali @ Shauka and others (1997 SCMR 1307) and 
Zahid Rehman v The State (PLD 2015 SC 77). It may be 
advantageous to begin the discussion with the relevant statutory 
provisions governing waiver (Afw) and compounding (Sulh) in cases 
of Qisas pertaining to the offence of qatl-i-amd (intentional murder) 
under section 302, PPC. Section 309(1), PPC provides that in a 
case of qatl-i-amd an adult sane wali may waive his right of Qisas 
without any compensation, section 310(1), PPC provides that in a 
case of qatl-i-amd an adult sane wali may compound his right of 
Qisas on accepting badal-i-sulh (compensation) and according to 
section 313(1), PPC the right of Qisas vests in the sole wali if there 
is only one and in each one of them if there are more than one. 
Section 305, PPC provides as follows: 
  
“305. Wali.-- In case of qatl, the wali shall be- 
 
Criminal Appeal No. 137-L of 2010 
 
8
(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.” 
 
Section 299(m), PPC defines wali in the following terms: 
 
“ “wali” means a person entitled to claim qisas (other than the 
person who has murdered the victim).” 
 
Section 307(1)(c), PPC provides as follows:  
 
“307. Cases in which qisas for qatl-i-amd shall not be 
enforced. (1) Qisas for qatl-i-amd shall not be enforced in the 
following cases, namely: 
 
(a) 
--------------------- 
 
(b) 
--------------------- 
 
(c) 
when the right of qisas devolves on the offender as a result 
of the death of the wali of the victim, or on the person who has no 
right of qisas against the offender. 
 
(2) 
--------------------- 
 
Illustrations 
 
(i) 
A kills Z the maternal uncle of his son B. Z has no other 
wali except D the wife of A. D has the right of qisas from A. But if 
D dies, the right of qisas shall devolve on her son B who is also 
the son of the offender A. B cannot claim qisas against her father. 
Therefore, the qisas cannot be enforced. 
 
(ii) 
D kills Z, the brother of her husband A. Z has no heir 
except A. Heir A can claim qisas from his wife B. But if A dies, the 
right of qisas shall devolve on his son D who is also son of B, the 
qisas cannot be enforced against B.” 
 
According to this section the right of Qisas vesting in a wali 
devolves on his heirs as a result of death of the wali. 
 
6. 
From the statutory provisions referred to and quoted above it 
emerges that in cases of Qisas the right of Qisas vests in each wali 
(section 313, PPC), a wali may waive his right of Qisas (section 
309, PPC), a wali may compound his right of Qisas (section 310, 
PPC), the heirs of the victim are his wali, according to his personal 
law (section 305(a), PPC), a person entitled to claim Qisas is wali 
(section 299(m), PPC) and upon death of a wali his right of Qisas 
devolves on the heirs of the wali (section 307, PPC). It, thus, 
becomes evident that even an heir of an heir of a victim has a 
Criminal Appeal No. 137-L of 2010 
 
9
(devolved) right of Qisas and he himself becomes a wali and in that 
devolved capacity of a wali he too can waive or compound the 
offence of qatl-i-amd in a case of Qisas. According to section 309(2), 
PPC and the proviso to the same if a wali (having the original or a 
devolved right of Qisas) does not waive his right of Qisas but the 
other wali waive their right of Qisas then the non-waiving wali is 
entitled to his share of Diyat. Therefore, had the case in hand been 
a case of Qisas then the appellant and his other brothers (who 
were not the heirs of Muhammad Aslam deceased but the right of 
Qisas possessed by the victim’s father had devolved upon them 
upon the father’s subsequent death and they had not waived their 
devolved right of Qisas against respondents No. 2 and 3) would 
have been entitled to their share of Diyat whereas the waiver would 
have been effective to the extent of all the other wali of the victim 
who had waived their right of Qisas against respondents No. 2 and 
3. 
 
7. 
It is not disputed that the case in hand is a case of Ta’zir 
and not of Qisas because the proof required for a case of Qisas in 
terms of section 304, PPC was not adduced in this case before the 
trial court. It may be clarified here that a criminal case becomes a 
cases of Qisas when, after the case has reached the trial court, 
either a confession is made by the accused person before the trial 
court during the trial or Tazkiya-tul-shahood (scrutiny of the 
witnesses before trial of the accused person) is undertaken by the 
trial court and unless either of the said two things happen before 
the trial court every criminal case is to be treated as a case of 
Ta’zir at every stage of the case including the stage of investigation. 
Compounding of offences in cases of Ta’zir is governed by section 
345, Cr.P.C. and according to section 345(2), Cr.P.C. (as the said 
legal provision stood in the year 2005 when the offences in the 
present case had been committed) the offence of qatl-i-amd under 
section 302, PPC could be compounded with the permission of the 
relevant court “By the heirs of the victim other than the accused or 
the convict if the offence has been committed by him in the name 
Criminal Appeal No. 137-L of 2010 
 
10
or on the pretext of karo kari, siyah kari or similar other customs 
or practices”. The said legal provision was amended on 21.10.2016 
and it presently reads as “By the heirs of the victim subject to the 
provisions of section 311, PPC.” According to the law in this 
country succession opens at the time of death of a person and 
upon his death his assets automatically stand devolved upon those 
who are entitled to inherit from him in specified shares in terms of 
his personal law and such inheriting persons are called the heirs of 
the deceased. There is, thus, no confusion in our law that an heir 
is a person who is entitled to inherit from the deceased at the time 
of his death. In view of this settled and recognized principle when 
the law of the land provides that in a case of Ta’zir an offence of 
qatl-i-amd under section 302, PPC may be compounded by the 
“heirs of the victim” and when an heir of a victim is only a person 
who inherits directly from the victim then what is clearly meant by 
section 345(2), Cr.P.C. is that only a person who can directly 
inherit from the victim is the person who can compound the 
offence of qatl-i-amd of the victim and none else. 
 
8. 
We note 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 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 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, as discussed above. It has been 
canvassed before us that for the purposes of harmonious 
construction the said principle applicable to cases of Qisas may be 
Criminal Appeal No. 137-L of 2010 
 
11
read into cases of Ta’zir as well but we have not felt persuaded to 
venture into such an exercise of judicial legislation through the 
means of interpretation, particularly when this Court has already 
recognized and declared in some earlier cases that different 
principles apply to cases of Qisas and Ta’zir in the matter of 
compounding of an offence and such principles cannot be 
confused or mixed and, hence, an attempt to harmonize the two 
concepts or principles may amount to unwholesome judicial 
engineering offensive to the concepts themselves. In the case of Sh. 
Muhammad Aslam and another v Shaukat Ali @ Shauka and others 
(1997 SCMR 1307) the distinction between the principles 
applicable to cases of Qisas under sections 309 and 310, PPC and 
to cases of Ta’zir under section 345, Cr.P.C. had clearly been 
recognized and acknowledged by this Court. The said case was a 
case of Ta’zir wherein a partial compromise had been arrived at 
between the convict and some of the heirs of the victim. This Court 
had elaborately discussed the issue from diverse angles and had 
then concluded that a partial compromise was acceptable in a case 
of Qisas but the same was not acceptable in a case of Ta’zir. In 
many subsequent cases and particularly in the case of Zahid 
Rehman v The State (PLD 2015 SC 77) this Court had reiterated 
and categorically declared again that the principles regarding 
compounding of an offence applicable to a case of Qisas are not 
relevant or applicable to a case of Ta’zir. In that case it was 
observed by this Court as under: 
 
“This Court has already declared that section 309, P.P.C. 
pertaining to waiver (Afw) and section 310, P.P.C. pertaining to 
compounding (Sulh) in cases of murder are relevant only to cases 
of Qisas and not to cases of Ta’zir and a reference in this respect 
may be made to the cases of Sh. Muhammad Aslam and another v. 
Shaukat Ali alias Shauka and others (1997 SCMR 1307), Niaz 
Ahmad v. The State (PLD 2003 SC 635) and Abdul Jabbar v. The 
State and others (2007 SCMR 1496). In the said cases it had also 
been clarified by this Court that in cases of Ta’zir the matter of 
compromise between the parties is governed and regulated by the 
provisions of section 345(2), Cr.P.C. read with section 338-E, 
P.P.C. In the same cases it had further been explained and 
clarified by this Court that a partial compromise may be 
acceptable in cases of Qisas but a partial compromise is not 
acceptable in cases of Ta’zir. The cases of Manzoor Hussain and 4 
others v. The State (1994 SCMR 1327), Muhammad Saleem v. The 
Criminal Appeal No. 137-L of 2010 
 
12
State (PLD 2003 SC 512), Muhammad Arshad alias Pappu v. 
Additional Sessions Judge, Lahore and 3 others (PLD 2003 SC 
547), Niaz Ahmad v. The State (PLD 2003 SC 635), Riaz Ahmad v. 
The State (2003 SCMR 1067), Bashir Ahmed v. The State and 
another (2004 SCMR 236) and Khan Muhammad v. The State 
(2005 SCMR 599) also throw sufficient light on such aspects 
relating to the matter of compromise. It may be true that 
compounding of an offence falling in Chapter XVI of the Pakistan 
Penal Code is permissible under some conditions both in cases of 
Qisas as well as Ta’zir but at the same time it is equally true that 
such compounding is regulated by separate and distinct 
provisions and that such limited common ground between the 
two does not obliterate the clear distinction otherwise existing 
between the two separate legal regimes.” 
 
As if this were not enough, section 338-E(1), PPC clinches the 
issue by providing as follows: 
 
“338-E. Waiver or compounding of offences. (1) Subject to the 
provisions of this Chapter and section 345 of the Code of Criminal 
Procedure, 1898 (V of 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 offences: ---------------------.” 
 
This section makes it abundantly clear that the principles of waiver 
and compounding contained in sections 309 and 310, PPC and 
applicable to cases of Qisas are neither applicable to nor do they 
control the principles contained in section 345, Cr.P.C. pertaining 
to compounding of offences in cases of Ta’zir. In view of such clear 
statutory clarification and in view of the above mentioned repeated 
judicial enunciation there is hardly any scope left for any 
harmonious construction of the two distinct and separate concepts 
by us. 
 
9. 
For the purpose of clarity of understanding we may explain 
why Qisas and Ta’zir are said to belong to separate legal regimes. 
To start with, the two concepts have different origins as the 
concept of Qisas has its origin in divine Islamic law and 
jurisprudence pertaining to offences in respect of human life and 
body whereas the origin of the concept of Ta’zir is secular and in 
our context it is derived mainly from Anglo-Saxon traditions. In the 
regime of Qisas the offence is committed against the victim 
whereas in the regime of Ta’zir the offence is committed against the 
Criminal Appeal No. 137-L of 2010 
 
13
State and the society as a whole. Application of Qisas or Ta’zir to a 
criminal case requires different standards of proof and entails 
different punishments. In cases of Qisas 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. 
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. 
Devolving of a right of Qisas, waiver or compounding on the heir of 
a dead wali of the victim is recognized 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. 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. 
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), Cr.P.C. according to which in a case of Ta’zir “No 
offence shall be compounded except as provided by this section.” 
Criminal Appeal No. 137-L of 2010 
 
14
 
10. 
 In the present case of Ta’zir the offence of murder of 
Muhammad Aslam could be compounded only by the heirs of the 
said victim and all the surviving heirs of that victim had voluntarily 
compounded the said offence with respondents No. 2 and 3. The 
High Court was, therefore, quite correct in holding that the 
appellant and his brothers, who were heirs of a subsequently dying 
heir of the victim, were not relevant to the matter of compounding 
of the offence. 
 
11. 
The argument that in his lifetime Waryam, the father and 
one of the heirs of Muhammad Aslam deceased, had refused to join 
the compromise between the remaining heirs of the deceased and 
respondents No. 2 and 3 and, therefore, after the death of Waryam 
any compromise between the remaining heirs of Muhammad Aslam 
deceased and the said respondents could not be complete without 
the heirs of Waryam joining the same had failed to impress the 
High Court and we have also not felt persuaded to accept the 
same. As already observed above, the concept of devolving of the 
right of Qisas upon an heir of an heir/wali of the victim relevant to 
a case of Qisas is not applicable to cases of Ta’zir. In the absence 
of any devolving of the capacity to compound in a case of Ta’zir the 
capacity to compound possessed by an heir of the victim at the 
time of murder of the victim stands exhausted upon the 
subsequent death of that heir. Being the father and an heir of 
Muhammad Aslam deceased Waryam 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 and the same was not heritable as 
Waryam’s heirs were not heirs of Muhammad Aslam deceased 
because they did not, and could not, inherit from him. After 
Waryam’s death his heirs could not be treated as heirs of 
Muhammad Aslam deceased and the only heirs of Muhammad 
Aslam deceased left in the field at such stage were those surviving 
heirs of Muhammad Aslam deceased who could inherit directly 
Criminal Appeal No. 137-L of 2010 
 
15
from him and they could compound the offence throughout their 
lifetime irrespective of timing of Waryam’s death. In cases of Ta’zir 
section 345(2), Cr.P.C. does not specify any time when 
compounding of an offence may take place and the provisions of 
section 345(2), Cr.P.C. do 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 
has/have already died. 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), Cr.P.C. which we 
are not ready to commit. 
 
12. 
Another thing to be clearly understood in the present context 
is that there is a difference between devolving of a right of Qisas 
and devolving of the status of an heir. Section 307, PPC recognizes 
that the right of Qisas devolves on an heir of an heir of the victim 
and because of devolving of the right of Qisas on him an heir of an 
heir of the victim also becomes a wali of the victim and in that 
devolved capacity of wali such heir of an heir of the victim can also 
waive or compound the relevant offence. Section 307, PPC, 
however, does not provide or recognize that through such devolving 
of the right of Qisas on him an heir of an heir of the victim also 
becomes or is recognized as an heir of the victim. Such distinction 
between devolving of the right of Qisas and devolving of a right to 
inherit from the victim has to be clearly understood because the 
first is relevant to the concept of Qisas whereas the second is 
relevant to the concept of Ta’zir. It has already been observed by us 
above 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 
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 is the governing 
consideration even if a wali in his devolved capacity is not in a 
Criminal Appeal No. 137-L of 2010 
 
16
position to directly inherit from the victim whereas in Ta’zir the 
sole consideration for the capacity to compound is the capacity to 
inherit directly from the victim. The present case offers a classical 
example of such a distinction because by virtue of section 307, 
PPC the appellant and his brothers might have become wali of 
Muhammad Aslam deceased on account of possessing a devolved 
right of Qisas (relevant to a case of Qisas) but they are not the 
heirs of Muhammad Aslam deceased for the purposes of 
compounding of the offence under section 345(2), Cr.P.C. in this 
case of Ta’zir.     
 
13. 
In the interim order passed in this case on 05.06.2018 it was 
noticed by this Court that the view regarding the issue at hand 
taken by the Lahore High Court, Lahore in the case of Ahmad 
Nawaz @ Gogi v The State (PLD 2007 Lahore 121) was in conflict 
with the view of this Court on the subject taken in the later case of 
Abdul Rashid alias Teddi v. The State and others (2013 SCMR 
1281) but we note that in none of the said cases the all-important 
distinction between cases of Qisas and those of Ta’zir had come 
under discussion and the Courts were not properly assisted in 
those cases in this particular regard. In the case of Ahmad Nawaz 
@ Gogi (supra) the Lahore High Court, Lahore had observed on the 
issue as follows:  
 
“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-e-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 
Criminal Appeal No. 137-L of 2010 
 
17
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 anybody 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 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), P.P.C. 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), P.P.C. 
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.” 
 
In the later case of Abdul Rashid alias Teddi (supra) this Court had 
extensively quoted from a judgment passed by the Lahore High 
Court, Lahore in the case of Muhammad Jabbar v The State and 10 
others (2000 P.Cr.L.J. 1688) and had then concluded as under: 
 
“14. 
To put it in other words, Islam is a religion of peace and 
harmony. It has for the first time in the history of mankind 
introduced 
and 
encouraged 
the 
concept 
of 
afw, 
darguzar/condoning and compounding of offences, even those 
relating to heinous crimes. Particularly, the one which relate to 
disputes between two or more private parties and carry an 
element of revenge, thus, harming the peace and tranquility in 
the society at large. For this purpose, through the dictates of 
various verses from the Holy Qur'an and Sunna of our Holy 
Prophet Hazrat Muhammad (Peace be upon him), a workable and 
practicable scheme for compounding of offences has been 
outlined under the Islamic criminal law. The purpose behind it is 
to provide a respectable and fair mode, based on the principles of 
equality 
of 
all 
human 
beings, 
to 
reach 
some 
settlement/compromise in the larger interest of the civil society 
and to bury the hatchet of revenge once for all, so as to save other 
generations from facing the consequence of enmity amongst 
different segments of society, aimed for satisfaction of endless 
Criminal Appeal No. 137-L of 2010 
 
18
personal vendetta. On this account too, such provisions of law 
relating to compounding of criminal offences are to be interpreted 
and applied liberally for the benefit of society and the humanity at 
large, but at the same time as per injunctions of Islam. 
 
15. 
Thus, after a careful reading of the provisions of section 
345, Cr.P.C., other relevant guiding principles of Islamic 
jurisprudence in this regard and the cases cited at the Bar, we 
are of the opinion that not only the surviving legal heirs of the 
victim have legal authority to waive right of qisas and compound 
the offence with the appellant/convict upon payment of 
compensation of diyat or without payment in lieu of pleasure of 
God, but such right is equally inheritable by the successors of 
any legal heir of the victim, who during his life time had either not 
entered into compromise witch the appellant/convict or refused 
to enter into such compromise, as despite his earlier refusal he 
was competent to change his mind and to subsequently enter into 
such compromise with the appellant/convict, while the principle 
of estoppel was not attracted in such situation to debar his 
successor from exercising such right independently at their own 
free will.” 
 
It is obvious that in the said case, due to lack of proper assistance, 
the Islamic concept of Qisas and the principles applicable thereto 
in the matter of compounding of an offence were expressly referred 
to and were simply presumed to be applicable to the secular 
concept of Ta’zir and compounding of an offence under that 
concept. Apart from that while holding that “not only the surviving 
legal heirs of the victim have legal authority to waive right of qisas 
and compound the offence with the appellant/convict ----------------
----- but such right is equally inheritable by the successors of any 
legal heir of the victim” no statutory provision or any source of 
Islamic jurisprudence had been referred to or relied upon by this 
Court. Both the above mentioned cases were cases of Ta’zir but on 
account of lack of proper assistance they were decided on the basis 
of principles applicable to cases of Qisas. We are, therefore, 
constrained to observe that the said cases may not to be approved 
or treated as good precedents on the subject. 
 
14. 
In India the Islamic regime of Qisas in criminal cases is not 
recognized and originally the matter of compounding of an offence 
was governed in India by statutory provisions identical to the 
original provisions of section 345, Cr.P.C. in Pakistan recognizing 
no role of an heir of a person in the matter of compromise if the 
person competent to compound an offence is dead. In Pakistan 
Criminal Appeal No. 137-L of 2010 
 
19
section 345(2), Cr.P.C. now provides that an offence of qatl-i-amd 
under section 302, PPC may be compounded by “the heirs of the 
victim” and does not provide for devolving of such capacity to 
compound on an heir of an heir of the victim but in India the 
legislature had introduced section 320(4)(b) of the Code of Criminal 
Procedure, 1973 which reads as follows: 
 
“When the person who would otherwise be competent to 
compound an offence under this section is dead, the legal 
representative, as defined in the Code of Civil Procedure, 1908, of 
such person may, with the consent of the Court, compound such 
offence.” 
 
Introduction of this legal provision in India is by itself a legislative 
acknowledgment that the capacity to compound an offence is not 
automatically devolved upon an heir of a person possessing the 
capacity to compound unless the law expressly provides for the 
same. The omission in this respect in the original law was supplied 
in India by the legislature and we in this country would not like to 
embark upon judicial legislation by supplying the relevant 
omission in our 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. 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.    
 
15. 
As a result of the discussion made above we have not been 
able to take any legitimate exception to the impugned judgment 
passed by the Lahore High Court, Multan Bench, Multan. The case 
in hand was not a case of Qisas but was of Ta’zir. Under the 
Islamic law of inheritance the brothers of Muhammad Aslam 
deceased in this case did not inherit from the deceased directly 
and even when the father of Muhammad Aslam deceased, an heir 
of the said deceased, subsequently died the brothers of 
Muhammad Aslam deceased, including the present appellant, did 
Criminal Appeal No. 137-L of 2010 
 
20
not become Muhammad Aslam deceased’s heirs because they 
stood excluded by a surviving son of Muhammad Aslam deceased 
who was closer to the deceased in degree in the matter of 
inheritance. 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), Cr.P.C. This appeal 
is, therefore, dismissed. 
 
16. 
The office is directed to send a copy of this judgment to the 
Secretary, Ministry of Law and Justice, Government of Pakistan, 
Islamabad for his information and for appropriate action, if deemed 
warranted.  
 
 
 
Chief Justice 
 
 
Judge  
 
 
Judge  
 
 
Judge  
 
 
Judge 
 
 
Judge 
 
I concur with the conclusion 
but 
for 
different 
reasons, 
which have been set out in my 
separate note. 
 
 
 
Judge 
 
 
Criminal Appeal No. 137-L of 2010 
 
21
 
Announced in open Court at Islamabad on 20.02.2019. 
 
 
Chief Justice 
Islamabad 
February 20, 2019 
Approved for reporting. 
Arif 
 
 
Syed Mansoor Ali Shah, J. - I have gone through the 
judgment authored by the Hon’ble Chief Justice (hereinafter 
referred to as the “Judgment”). I concur with the conclusion of 
the Judgment that the instant appeal merits dismissal.  I, however, 
espouse views different from those expressed in the Judgment, 
regarding the meaning and determination of the heirs of the victim 
or the wali of the victim in the context of compoundability of the 
offence 
of 
qatl-i-amd 
(interchangeably 
also 
referred 
to 
as 
compromise between the parties) under the two regimes of Qisas1 
and Ta’zir2.   
 
2. 
The precise legal question before the Court is the 
scope and extent of the term “heirs of the victim” used in section 
345 Cr.P.C. in order to determine who on behalf of the deceased 
victim is entitled to compound the offence of qatl-i-amd punishable 
as ta’zir under section 302, PPC.  Additionally, whether the scheme 
of compoundability is different in case of Qisas where “wali of the 
victim” is to be determined?  
 
3. 
In my view, Islamic Law of Inheritance goes to the root 
of the case and is central to the concept of compounding of the 
offence of qatl-i-amd under Qisas and Ta’zir, which in turn rests on 
the meaning of heirs and walis of the victim. It is essential to 
                                                
1 See sections 307(b), 309 and 310 PPC. 
2 Section 345(2) Cr.P.C 
Criminal Appeal No. 137-L of 2010 
 
22
emphasize that the only law that can determine the heir(s) of a 
deceased (victim) for Muslims in Pakistan is their personal law i.e., 
the Islamic Law of Inheritance (similarly for non-Muslims its their 
personal law). According to Professor Coulson, Islamic Law of 
Inheritance “is a solid technical achievement, and Muslim 
scholarship takes a justifiable pride in the mathematical precision 
with which the rights of the various heirs, in any given situation, can 
be calculated…Nowhere is the fundamental Islamic ideology of law 
as the manifestation of the divine will more clearly demonstrated 
than in the laws of the inheritance….From a sociological standpoint, 
the laws of inheritance reflect the structure of family ties and the 
accepted social values and responsibilities within the Islamic 
community3.” Under Islamic Law of Inheritance, rights of 
inheritance rest upon two principal grounds of marriage and blood 
relationship with the deceased and there are three kinds of heirs: 
Sharers, Residuries and Distant Kindred. Sharers are those who 
are entitled to a prescribed share of inheritance. Residuaries are 
those who take no prescribed shares but succeed to the residue 
after the claims of the sharers are satisfied.  Distant Kindred are 
all those relations who are neither sharers nor residuaries. After 
ascertaining which of the heirs or descendants of the deceased 
(victim) are entitled to succeed, the next step is to distribute the 
estate among them.4  It is true that the inheritance opens on the 
death of the victim and the heirs are identified according to the 
Islamic Law of Inheritance and the estate of the victim 
automatically devolves upon the said heirs.  While the estate of the 
deceased devolves on the heirs, the concept of inheritance and 
heirship does not end. Devolution is neither one time nor does it 
freeze in time at the time of the death of the victim. As families 
grow and evolve, moving from generations to generations, the heirs 
also grow, replacing the earlier heirs yet maintaining their descent 
and lineage from the ancestors.  The heirship or right to 
inheritance moves downwards, as well as, upwards, hence the 
                                                
3 N.J.Coulson - Succession in the Muslim Family. Cambridge University Press (1971). p 3  - 
underlining supplied.  
4 see: D.F.Mulla’s - Principles of Mahomedan Law. 
Criminal Appeal No. 137-L of 2010 
 
23
term “descendants” and “ascendants.”  The concept of “how low-so-
ever” or “how-high-so-ever” under the Islamic Law of Inheritance 
marks the downward and upward flowing concept of succession 
and inheritance, resembling a running chain of blood ties and 
marriage. As a matter of illustration, if in the instant case it is 
discovered after say thirty years from the death of the victim that 
the State has decided to confer certain property on the victim for 
his meritorious services or some property has been discovered that 
belongs to the victim, and the surviving heirs at the time of death 
of the victim being dead by now, who then will inherit the property 
of the victim?  or will the property escheat and revert to the State 
because the first line of heirs is dead ? Under the Islamic Law of 
Inheritance, heirship is a living and an evolving concept and 
therefore the property will vest in the heirs of the victim as they 
stand today and the meticulous Islamic Law of Inheritance can 
identify the heirs of the victim even after three decades. Therefore, 
at any given time, the heirs or descendants or ascendants of the 
victim can be identified with mathematical precision under the 
Islamic Law of Inheritance. Restricting the term “heirs of the 
victim” to only the surviving heirs of the victim at the time of the 
death of the victim, is an interpretation that might not sit well with 
the Islamic Law of Inheritance and public policy.   The concept of 
genealogical tree (shajrah nasab) in our Land Revenue law is an 
example of this successional calculation. At this juncture I cannot 
lose sight of section 338-F of the PPC which provides that while 
interpreting the provisions of chapter XVI (of offences affecting the 
human body) the court shall be guided by the injunctions of Islam 
as laid down in the Holy Quran an Sunnah. One of the best 
showcases of these injunctions is the Islamic Law of Inheritance, 
itself. 
 
4. 
 Applying the principles of the Islamic Law of 
Inheritance, as discussed above, to the instant case on merits, I 
see that in the presence of the son and the widow, the brothers of 
the victim or sons of the deceased father Waryam stand excluded 
Criminal Appeal No. 137-L of 2010 
 
24
from the line of succession. Hence the available heirs at the time of 
compromise are the son and the widow of the victim. The High 
Court confirmed the view taken in Report of the District & Sessions 
Judge, Vehari dated 12.05.2010. The relevant extract of the Report 
is as follows: 
 
 “5. From the statements of Razia Bibi (widow) and Muhammed 
Akmal (son) legal heirs of the deceased , it is evident that 
compromise between the parties is genuine as they have no 
objection if the said convicts are acquitted.  The legal heirs of the 
deceased Waryam who was father of Muhammed Aslam deceased 
are not now the legal heirs of Muhammed Aslam deceased of this 
case.”  (emphasis supplied) 
  
The Appellants were excluded not because they were the heirs of 
the heirs of the victim but because they were not the heirs of the 
victim under the Islamic Law of Inheritance. The application for 
compromise was rightly allowed leading to the acquittal of 
respondents No. 2 and 3. The impugned judgment of the High 
Court upholding this view is, therefore, correct and the present 
appeal merits dismissal.   
 
5. 
It is now settled that Qisas and Ta’zir are two separate 
regimes, having their own sets of rules as laid down in Muhammad 
Aslam v. Shaukat Ali (1997 SCMR 1307)  and Zahid Rehman v. 
State (PLD 2015 SC 77). However, when it comes to the question of 
determining the heirs of the victim or walis of the victim, for the 
purposes of compoundability of the offence of qatl-i-amd,  the two 
regimes converge and both take guidance from the Islamic Law of 
Inheritance to resolve this question. This is because the Islamic 
Law of Inheritance is the only law that provides for determination 
of heirs in the country.  Even otherwise, Pakistan Penal Code, 
1860 or the Criminal Procedure Code, 1898 do not provide a 
separate mode and manner of determining heirs of the victim and, 
thus, cannot possibly be considered as a parallel system of 
inheritance and succession.  Reference to the terms “heirs of the 
victim” and “wali of the victim” under these Codes assumes 
outsourcing the answer to the Islamic Law of Inheritance, as these 
Criminal Appeal No. 137-L of 2010 
 
25
Codes have no mechanism to resolve these questions. Therefore, 
both the regimes of Qisas and Ta’zir rely on the principles of 
Islamic Law of Inheritance uniformly to determine the heirs of the 
victim or the wali of the victim for the purposes of compounability 
in the cases of qatl-i-amd. 
 
6. 
Under the regime of Ta’zir, the heirs of the victim can 
compound the offence of qatl-i-amd under Section 345(2), Cr.P.C. 
with the permission of the Court. The right vested in the “heirs of 
the victim” makes the right of compoundability under Ta’zir 
inheritable.  In another sense this right is  also an actionable 
claim,5 hence inheritable. Section 345(2) Cr.P.C. has no time limit 
and can be invoked by the accused party at any stage after the 
offense is committed and before the sentence is executed. The 
purpose of this provision is understandably to encourage 
settlements between warring parties in order to protect family life 
and ensure a peaceful community. The heirs of the deceased victim 
can exercise this right. The first heirs of the victim are those who 
survive him immediately at the time of his death, but as explained 
above, the heirship of the victim continues in time and at any given 
time, when the heirs who survived at the time of death of the 
deceased are no more, there will still be heirs of the victim under 
the Islamic law of inheritance in the shape of sharers, residuaries 
or distant kindred.  The heirship is based on blood and marriage 
and continues as the families evolve. So the available heirship is to 
be determined afresh when the right to compound is to be 
exercised irrespective of the time of death of the victim. It is 
emphasized that the available heirs of the victim and not heirs of 
the heirs are to be determined.  In the instant case, the appellants 
are the heirs of the heir but are not the heirs of the victim under 
the Islamic law of inheritance, as they stand excluded by the son.  
A five member bench of this Court has upheld this view in Abdul 
Rashid v. State (2013 SCMR 1281), even though the distinction 
                                                
5 see The Compendium of Islamic Law by All India Muslim Personal Law Board (AIMPLB) 
Criminal Appeal No. 137-L of 2010 
 
26
between the two regimes of Qisas and Ta’zir was somewhat blurred 
in the said opinion. 
 
7. 
Qisas means punishment by causing similar hurt to 
same part of the body of the convict as he has caused to the victim 
or by causing death if he has committed qatl-i-amd in exercise of 
the right of the victim or a wali6. Under section 299 (m) PPC, wali 
means a person entitled to claim qisas.  Under section 305(a) PPC, 
wali in case of qatl means the heirs of the victim, according to his 
personal law. Section 306(c) provides that qati-i-amd shall not be 
liable to qisas when any wali of the victim is a direct descendant, 
how low-so-ever, of the offender. Section 307 (c) provides a 
situation when qisas for qatl-i-amd cannot be enforced i.e., “when” 
the right of qisas devolves on an offender as a result of the death of 
the wali of the victim.  Section 307(c) PPC is actually about an 
offender not having a right of qisas and proceeds on an implied 
assumption that the right of qisas is inheritable. Section 307(c) is, 
therefore, not a specific provision mandating devolution of the right 
of qisas.  In my view there is no requirement to state the obvious. 
Wali by definition is an heir of the victim7.  Right to qisas is also 
akin to an actionable claim and is, therefore, inheritable under the 
Islamic Law of Inheritance.8  The right of qisas held by the wali of 
the victim devolves on to the next wali of the victim, who is 
ofcourse an heir of the victim and not necessarily an heir of the 
heir or heir of the wali.  As discussed above, section 307, PPC does 
not provide a scheme of inheritance that helps identify the next 
wali of the victim. Therefore, it is difficult to accept the view 
propounded in the Judgment that had the instant case been under 
qisas, the appellants would pass for walis (para 6 of the 
Judgment), being the heirs of the deceased wali (Waryam). The 
distinction between heirs of the victim i.e., wali under section 
299(m) PPC and heirs of wali (Waryam), needs to be kept in mind. 
Under Islamic Law of Inheritance, the appellants (brothers of the 
                                                
6 See section 299 (k) PPC 
7 section 305(a) PPC. 
8 see The Compendium of Islamic Law by All India Muslim Personal Law Board (AIMPLB) 
Criminal Appeal No. 137-L of 2010 
 
27
victim) stand ousted in the presence of the son and cannot pass as 
wali of the victim even though they are the heirs of Waryam. So 
even if the instant case was under qisas, only walis would have 
been the son and the widow or else the principles of Islamic Law of 
Inheritance would stand violated.  
 
8. 
Another dimension is sociological and rests on public 
policy. Why should an interpretation be encouraged that restricts 
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?  This interpretation supports the 
protection of the family as envisaged in the Principles of Policy 
under article 35 of the Constitution.   Any embargo on the exercise 
of the right to compound under section 345(2) Cr.P.C. by the 
subsequent heirs of the victim might not be in consonance with the 
Islamic Law of Inheritance. 
 
9. 
Section 320 of the Indian Code of Criminal Procedure, 
1973 does not provide for compounding of an offence in case of 
murder (qatl-i-amd). Further, in case the person who can 
compound the offences given under the said section dies a natural 
death, his or her legal representative, with the consent of the court, 
may compound the offence.  Legal representative supports the 
purposive interpretation employed in this note, recognizing a more 
contemporary status of the heir of the victim, who is there at the 
point of time of compounding and is not frozen in history at the 
time of the death of the victim.  
 
10. 
The Judgment has referred the matter to the Federal 
Government to consider the possibility of amending the law by the 
Parliament. I am sure these reasons will also assist the Federal 
Government in bringing about more clarity in the proposed 
amendment.  I, therefore, concur with the said direction.  
 
Criminal Appeal No. 137-L of 2010 
 
28
11. 
 As a conclusion, these are my reasons for concurring 
with the Judgment to the extent of the dismissal of the instant 
appeal and the direction to the Federal Government as discussed 
above.    
 
 
(Syed Mansoor Ali Shah) 
Judge 
 
