Waiver and Compounding of Qisas
Waiver of Qisas:
Section 309 PPC empowers wali to waive right of qisas at any time and without any compensation. The only stipulation is that the right of qisas shall not be waived where the government is wali or where the right of qisas vests in a minor or insane. Where victim has more than one wali, anyone of them may waive his right of qisas provided that the wali who does not waive his right of qisas shall be entitled to his share of diyat. Where there are more than one victim, the waiver of right of qisas by the wali of one victim shall not affect the right of qisas of other victim. Where there are more than one offenders the waiver of the right of qisas against one offender shall not affect the right of qisas against another offender. An adult sane wali has a right to waive his right of qisas and to retain his right of receiving diyat or he may waive the right of qisas as well as diyat. Right of qisas is a personal right which can be exercised by an adult and sane person. Minor wali cannot waive his right of qisas through his guardian. Clause (b) of first proviso to S. 309 provides where the right of qisas vests in a minor or insane it cannot be waived.
Compounding of Qisas:
Section 310 PPC relates to the compounding of right of qisas in the case of qatl-i-Amd on accepting Badl- Sulah. Under section 310 an adult sane wali has been empowered to compound qisas in qatl-i-Amd. Where a wali is minor or insane, the wali of minor or insane may compound the right of qisas on his behalf. According to proviso the value of badl sulah shall not be less than the value of diyat. A new provision i.e., S. 310-A has been inserted through Criminal Law Amendment Act 2005 Which provides that female shall not be given in marriage or otherwise in Badl- Sulah . Moreover, government can compound on behalf of wali and Badl- Sulah may be paid on demand or deferred to a date as agreed upon between the parties
Applicability of ss. 309 and 310.
Provisions of Waiving right of qisas or compounding of offence can be invoked at any time before execution of sentence and court is always competent to entertain and give effect to compromise between the parties even after the decision of the case and would not become functus officio in matter of compromise.
Sentence of murder awarded as Tazir.
If the offender has been punished under tazir the provisions of Ss. 309 and 310 PPC would not apply in such case. However, in view of the amendment in S. 345 (2) Cr.P.C the death sentence awarded for murder as Tazir can be compounded by all the legal heirs of the deceased with the permission of the court concerned where only one legal heir of the deceased compromise with the convict and rest of the heirs opposed the compromise punishment awarded u/s 302 (b) can neither be compounded in the absence of other legal heirs nor provision S. 310 can be pressed into service in such cases.
Punishment notwithstanding waiver or compounding:
Section 311 of PPC empowers the court to award tazir even after waiver or compounding right of qisas in qatl-i-amd. It provides notwithstanding anything constrained in S. 309 and 310 where all the walis do not waive or compound the right of qisas or keeping in view the principle of fasad fil arz, the court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as tazir. If the offence is committed in the name or on the pretext of honour, the imprisonment shall not be less than 10 years. According to explanation for the purpose of this section. The expression fasad fil arz includes the past conduct of the offender or his previous convictions or the offender or his previous convictions or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience or commission of offence in the name or on the pretext of honour.
Applicability of S. 311 PPC;
Section 311 is attracted only to that case where an accused person is first found guilty of qatl-i-amd liable to qisas, creating and vesting a right of qisas in the wali (heirs) of the victim and thereafter either a partial compromise is arrived at between the convict and some of the heirs of he victim on the basis of waiver or compounding of their right of qisas by compromising heirs or a complete compromise is arrived at between the convict and all the heirs of the victim on the basis of waiver or compounding of their right of qisas by them, but the court keeping in view the principle of fasad fil arz is not ready to let the convict go scot free.
Permission of the court:
Permission of the court for compounding of an offence is mandatory and no offence mentioned in Sub-section (2) of section 345 Cr.P.C shall be compounded without such permission where the court withholds such permission then it has discretion u/s 311 PPC to impose punishment on the offence under tazir despite the compromise arrived at between the heirs of the deceased and accused.
Court must satisfy itself about voluntariness or validity of right of waiver or compounding. In certain cases by duress or coercion legal heirs are sometimes coerced to compound or waive offence against influential accused.