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Shariat Appeal No. 9 of 1984, decided on 29th August, 1984.

‑‑‑Arts.185(3), 203‑F(2‑B) & 203‑D‑‑Penal Code (XLV of 1860), 5.302‑ Injunctions of Islam‑‑Provisions of law repugnant to‑‑Execution of death sentence despite compromise and pardon by legal heirs of deceased‑‑Stay of‑‑Entertainment of appeal‑‑Appellants convicted and sentenced to death by Special Military Court‑‑Forgiven by legal heirs of deceased on compromise‑‑Execution of death sentence in circumstances repugnant to Injunctions of Islam‑‑Appellants not challenging any Martial Law Regulation or conviction by Military Court but seeking stay of execution of death sentence‑‑Appeal entertained for hearing‑‑Execution of sentence stayed meanwhile.‑‑ [Sentence‑‑Compromise].

Nisar alias Nisari and another v. Government of Pakistan and others Shariat Miscellaneous No. 68‑R of 1984 and Shariat Miscellaneous No. 69‑R of 1984' and Zahir Shah v. The State Shariat Petition No. 4‑P of 1981 rel.

Raja Muhammad Anwar, Advocate for Petitioners.

Date of hearing: 28th August, 1984.

This appeal is directed against the order of the Registrar of the Federal Shariat Court, dated 26‑8‑1984 refusing to entertain the Shariat Petition filed by the appellants herein on the ground that it lacked jurisdiction to do so.

2. The background is that the appellants were tried for the murder of Abid Hussain and Nazir Ahmad under section 302, P.P.C. by the Special Military Court No. 17, Gujrat and were sentenced to death on 13‑1‑1983. However, before the execution of the aforesaid sentence of death, the appellants appear to have entered into a compromise with the legal heirs of the deceased, as a result of which they have been persuaded to forgive them. The appellants, therefore, filed a petition before the Federal Shariat Court submitting that since according to the Holy Qur'an and Sunnah once the legal heirs of the deceased have forgiven an accused‑person the death sentence cannot be enforced; the existing law‑pertaining to execution of sentences of death despite a compromise between the parties and pardon of the accused by the legal heirs of the deceased is against the Holy Qur'an and Sunnah. Hence, such a law was liable tp be declared as repugnant to the Injunctions of Islam. They further submitted that they were not challenging any Martial Law Regulation or conviction by the' Military Court but were praying only for a direction that the Jail authorities be restrained from executing the sentence which was against the Injunctions of Islam.

3. This petition, however, was not entertained by the Federal Shariat Court on the authority of a decision taken by it on 5‑8‑1984 in Shariat Petition No. 3‑L of 1984 Muhammad Idrees v. Government of Pakistan and others and was returned to the appellants in original. Hence the present appeal to this Court.

4. The matter has been put upto me in connection with the question of its entertainment and orders for interim relief.

5. Raja Muhammad Anwar, learned counsel for the appellants has produced before me an order of the Shariat Appellate Bench of this Court, dated 4‑4‑1984 in Nisar alias Nisari and another v. Government of Pakistan and others (Shariat Miscellaneous No. 68‑R of 1984 and Shariat Miscellaneous No. 69‑R of 1984) and drew my attention to the following part of the said order:‑

"When questioned in this behalf learned counsel explained that the appellant had no intention of challenging the conviction recorded by the Military Courts, nor the provisions or effect of any M.L.R. or M.L.O. or P.O. are involved in the case. Nor they will be brought under discussion. He has explained that the law relating to execution of death in the Cr.P.C. and the rules/ directions including the Jail Manual in so far as they do not make provision for taking note of the compromise in murder cases were sought to be declared against the Injunction of Islam as contained in the Qur'an and Sunnah. He has also relied on the precedent case of Zahir Shah v. The State (Shariat Petition No. 4‑P of 1981) decided by the Federal Shariat Court under Article 203‑D of the Constitution on 6‑4‑1982.

After the clarification made by the learned counsel regarding the point to be raised in the appeals, the ground mentioned by Registrar for not entertaining the appeal do not exist any more.

These appeals are allowed with the direction that the original appeal returned earlier should be entertained and registered."

6. This appeal may be entertained and should be assigned a number.

7. Notice to issue to the respondents for a date in the month of October, 1984 at Rawalpindi or wherever the Shariat Appellate Bench of this Court is to assemble.

8. The respondent No. 3 (Superintendent, Central Jail, Gujranwala) shall not execute the sentence of death passed against the appellants, meanwhile.

M.I. Death sentenced stayed.

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