2012 P Cr. L J 1583
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
ABDUL GHAFOOR and another ---Petitioners
Versus
SAKHAWAT KHAN and another ---Respondents
Criminal Quashment No.216 of 2012, decided on 21st June, 2012.
Penal Code (XLV of 1860) ---
----Ss. 310, 323 & 331 --- Criminal Procedure Code (V of 1898), S.561 -A---
Compounding of offence ---Quashment of order of the Trial Court ---Payment of Diyat to
minor legal heirs of the deceased ---Mode of pa yment determined by the Trial Court without
making any decision on the compromise; without stating the Diyat amount, and without
specifying the shares of the minor legal heirs ---Effect ---Application of accused persons
(petitioners) seeking payment of Diyat in favour of minor legal heirs of the deceased in form
of landed property was rejected by the Trial Court with a direction to deposit the Diyat
amount in the bank ---Validity ---Trial Court had to make a specific order by either accepting
or rejecting t he compromise submitted by the parties and then the Diyat amount was to be
fixed and mode of its payment determined ---Said procedure had not been adopted in the
present case ---Trial Court seemed to be under some misconception whereby it assumed
acquitta l of the accused persons only on submission of the compromise ---Court had to look
into the merits of the case before making an order of acceptance or rejection of the
compromise, thereby acquitting or convicting the accused ---Trial Court failed to decide t he
present case in accordance with the law ---Quashment petition was accepted and impugned
orders were set aside and the Trial Court was directed to proceed strictly in
accordance with the law.
2012 SCMR 437 and Chairman Agriculture De velopment Bank of Pakistan v. Mumtaz Khan
PLD 2010 SC 695 ref.
Muhammad Kamran Mullahkhail for Petitioners along with petitioners in person.
Respondent No.1 present in person.
Miss Sarwat Hina, Additional Prosecutor -General for the State.
Date of h earing: 5th June, 2012.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---It is a criminal quashment petition filed by the
petitioners feeling aggrieved of order dated 28th March, 2012 of Additional Sessions Judge -
VI, Quetta whereby the miscellaneous application su bmitted by the petitioners seeking
transfer of movable property in favour of minor legal heirs of deceased in lieu of Diyat
amount, was refused. It was contended that the trial court made the order in violation of
section 310, Pakistan Penal Code (P.P.C.), thereby failed to understand the relevant provision
of law. Further, the observations recorded by the trial Court about insecurity of landed
property was also misconceived, without any legal sanctity, therefore, not sustainable. It was
prayed that the imp ugned order dated 28th March, 2012 be set aside, and the application
submitted by the petitioner to the effect be accepted.
2. The learned counsel for the petitioners while arguing his case was of the view that
they (petitioners) might have been allowed to pay Diyat amount in shape of landed property
keeping in view their financial position. He further argued that the matter had already been
compromised between the parties, and the major Walis of the deceased have waived their
right of Qisas. But the only question remained for determination was about the minor legal
heirs of the victim. The learned counsel referred to sections 310, 323 and 331, Pakistan Penal
Code (P.P.C.). It was further contended that the mode of payment of Diyat amount was to be
conside red by the trial court in accordance with relevant provisions of law, which was not
done. He also referred to Diyat, Arsh and Daman Fund Rules, 2007, with contention that the
law provide help to the accused persons, who entered into compromise with their o pponents.
Learned counsel relied upon judgment titled as Suo Motu Action regarding non -payment of
the compensation amount to the poor electrician, who has been pressurized by the political
figure of PML(N) as well as by the police to enter into a compromis e with the accused
murderers of his 12 years old son reported in 2012 SCMR 437. Learned Additional
Prosecutor -General in reply also referred to the same provisions, but contested the prayer of
payment of Diyat in shape of landed property. She relied upon j udgment titled as Chairman
Agriculture Development Bank of Pakistan v. Mumtaz Khan reported in PLD 2010 SC 695.
3. During course of arguments it was asked from the learned counsel for the petitioners,
Additional Prosecutor -General, and the respondent tha t whether the trial Court had made any
order in respect of the compromise, submitted by the parties either accepting or rejecting it
and made order for payment of the diyat amount thereby fixed. But it was their reply that it
was the only order made by the trial court questioned through instant petition, therefore, the
record of the trial Court was called and perused. The perusal reveals that during course of
trial the petitioners submitted an application along with papers of compromise, disclosing the
fact about settlement of dispute and waiver of their right of Qisas, and Diyat. To get affirm
the same, commission was appointed and the statements of the ladies to the compromise were
recorded. But it is very much apparent that the trial court failed to make any decision thereby
accepting or rejecting the compromise, rather ordered for payment of Diyat amount, without
even describing the amount, which was to be paid. Rather from the order sheets dated 16th
November, 2011, 26th November, 2011 and 14th December, 2011 only directions were given
for payment, without even mentioning the amount. The record further reveals that meanwhile
an application was filed by the petitioners/accused persons seeking permission for payment of
diyat amount in shape of landed prop erty. The trial Court through order dated 28th March,
2012 declined the request, with direction that the amount of Diyat be deposited in the Bank in
saving account with minor, legal heirs within fifteen (15) days. It is the order assailed through
instant p etition.
4. From the perusal of the case file it appears that the trial Court on submitting of
compromise failed to decide the case in accordance with law. Rather, gave directions to the
accused persons for payment of Diyat amount without, even assessing the Diyat amount, and
specifying the shares of the minor legal heirs, which was of no legal effect. Because, as per
requirement of law the trial court has to make a specific order for acceptance or rejection of a
compromise submitted by the parties, there by made decision in the case either of acquittal or
conviction of the accused persons from the offence charged thereof. The Diyat amount is to
be fixed, and mode of its payment is to be determined thereon. But in case in hand, the
procedure had not been ad opted. There is no decision of the court in the case pending before
it, which is to be decided in accordance with law. The trial Court is required to make a
decision and payment of Diyat amount is also part of it. The trial Court had completely failed
to adopt the legal course.
5. Furthermore, the trial Court seemed to be under some misconception, thereby
assuming acquittal of the accused persons only on submitting of the compromise effected
between the parties. But it is advisable to note that the ultima te result of compromise is not
automatic acquittal of the accused persons from the charge, rather the court has to look into
merits of the case before making an order of acceptance or rejection of the compromise
arrived between the parties, thereby acquitt ing or convicting the accused person. Further,
sections 305, 307, 309, 310, 311, 323, 330, 331, P.P.C. read with section 345(2), Cr.P.C.
provided a complete procedure for effecting of settlement of dispute between the parties; it
may be in shape of compoun ding of qisas or waiver. In each case the trial Court has to make
decision keeping in view the merits of the case. Furthermore, entitlement for diyat, and the
amount of the diyat is also to be determined by the trial Court in specific terms keeping in
view section 323, P.P.C. Furthermore, even if the major walies forgone their right of Diyat,
the share of the minor legal heirs are to be assessed, the mode of the payment of diyat is to be
determined keeping in view the provisions of section 310 and 331, P.P. C., as the case may be.
In view of the above discussion, the petition is hereby accepted. The impugned orders dated
l6th November, 2011, 26th November, 2011, 14th December, 2011 and 28th March, 2012 are
hereby set aside. The trial Court is directed to pr oceed with the matter strictly in accordance
with law.
The record of the trial Court be sent back immediately.
MWA/54/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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