2017 P Cr. L J 1521
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove, J
ALLAH DINA--- Petitioner
Versus
The STATE---Respondent
Criminal Revision No. (s) 9 of 2017, decided on 13th March, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 34 ---Criminal Procedure Code (V of 1898), S. 345---Appreciation of
evidence ---Waiver or compounding of offence ---Scope ---Prosecution case was that accused and
his co -accused made firing on complainant party, which resulted the instantane ous death of
brother of complainant and a person sitting in a nearby hotel received injuries ---After registration
of case, accused/appellant was arrested, tried and convicted and sentenced ---Convict filed
appeal, which was dismissed ---Parties thereafter co mpromised the matter and the same was filed
before the Trial Court for acceptance and acquittal of accused/appellant on the basis thereof ---
Trial Court rejected the compromise on the ground of suppressing the material facts from the
court ---Validity ---Reco rd showed that deceased was survived by father, mother, two wives,
daughter and son but compromise was effected between father, brother and son of deceased---
Brother of deceased did not fall in the ambit of legal heirs of deceased ---Witnesses stated that
they were sole legal heirs of deceased and competent to pardon the accused because mother,
daughter and a wife had died---Deceased was survived by another wife, but as the deceased
before his death had divorced the said wife, as such she did not fall within the definition of legal
heir of deceased ---Validity ---If the deceased, before his death had divorced his wife, he was
legally bound to convey the factum of divorce to the Union Council concerned in writing ---No
such record was produced through the represe ntative of union council concerned ---Factum of
death of wife and daughter of deceased was required to be proved in accordance with law ---
Record transpired that death certificates of wife and daughter of deceased were issued by Chief
Officer Municipal Committee on the basis of information conveyed by brother of deceased was a
matter of grave concern and thereby he exposed himself to be taken to task because his act
smacked unofficial and irresponsible attitude ---Allegedly, real sister of accused was another wife
of deceased but father of deceased intentionally did not disclose said fact in his affidavit ---Son of
deceased was aged about 14/15 years, therefore, compromise by a person who had not attained
the age of puberty was questionable and a hurdle in petit ioner's way --- Revision petition was
dismissed in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 345---Compromise ---Legal heirs ---Court being custodian of the Fundamental Rights of all
the legal heirs of deceased could not shut its eyes from the illegalities, irregularities and
suppression of material facts by the petitioner and the legal heirs.
(c) Administration of justice ---
----Every person who wanted indulgence of the court in any matter was legally and morally
bound to approach the court with clean hands.
Ali Hassan Bugti for Petitioner.
Jameel Akhtar, Additional P.- G. for the State.
Date of hearing: 28th February, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---The instant Revision petition is directed against
the order dated 22.12.2016 passed by Sessions Judge, Naseerabad at Dera Murad Jamali whereby
the application filed by petitioner under section 338- E, P.P.C. read with section 345, Cr.P.C. was
rejected.
2. Brief facts of the case are that on 11th July, 2012 complainant Balach Khan lodged the
instant FIR No. 130/2012 with PS City, Dera Murad Jamali wherein he alleged that on the fateful
day he along with his brother and cousin Muhammad Umer preceded to 'Bazar' from their house
to purchase house -hold articles. At about 5.40 p.m. confronted by the accused persons Alladina
and Qadir Bakhsh who came on a bike having T.T. Pistol with them. They made fires which
resulted the instantaneous death of his brother Abdul Sattar. Another person Azmat son of
Muhammad Yousif sitting in a nearby H otel also received injuries. Motive behind the incident
was stated to be previous enmity. After registration of case the accused appellant was arrested,
tried, convicted and sentenced vide judgment dated 13th March, 2013. The appeal filed by
convict before this Court was also dismissed. Thereafter the parties compromised the matter and
the same was filed before the trial Court for acceptance and acquittal of petitioner on the basis
thereof, the learned trial Court recorded statements of five CWs and eventua lly rejected the
compromise on the ground of suppressing the material facts from the Court. As per the order
dated 27th December, 2016 passed by learned Sessions Judge, Naseer -abad at Dera Murad
Jamali (impugned) the deceased was survived by following lega l heirs:-
i. Bana Faqeer ---Father of the deceased.
ii. Mother of the deceased (name not known)
iii. Mst. Rabia ---Widow of the deceased.
iv. Mst. Waziran Bibi ---Daughter of the deceased.
v. Zuhra Bibi ---Daughter of the deceased.
vi. Waqar Ahmed ---Son of the deceased.
3. It may be noted that the instant compromise was effected between father of the (deceased
one of the legal heirs) and Balach Khan complainant (brother of deceased who does not fall
within the definition of legal heir of dece ased and son of deceased namely Waqar Ahmed aged
about 14/15 years). As per the statements of CW.1, 2 and 3 they are the sole legal heirs of
deceased and competent to pardon the accused because mother of the deceased died prior to the
incident and deceased 's daughter namely Zuhra Bibi died in the year 2014 and the wife of
deceased namely Rabi died in the year 2015. The accused was also survived by another wife
namely Waziran Bibi but as the deceased before his death had divorced the said Waziran Bibi, as
such; presently she does not fall within the definition of legal heir of deceased.
4. The learned trial Court on filing of compromise sought reports from the IO of the case
and Chief Officer, Municipal Committee, Dera Murad Jamali (the latter has issued deat h
certificates regarding the death of deceased's widow namely Mst. Rabi and daughter namely
Zuhra). Both the above referred CWs were examined by the trial Court during compromise
proceedings but they did not support the version of alleged sole legal heirs of deceased. So much
so the Chief Officer Municipal Committee CW.4 when appeared before the Court stated that he
issued the death certificates of Mst. Rabi (wife of deceased) and Mst. Zuhra (daughter of
deceased) on the basis of information conveyed by brother of deceased namely Balach Khan.
One of the ground prevailed upon the trial Court while rejecting the compromise was that Mst.
Waziran (another wife of deceased) was real sister of convict but the father of deceased
intentionally did not disclose this fact in his affidavit. As before the trial Court divorce to Mst.
Waziran Bibi by the deceased before his death and death of Mst. Rabia and Zuhra could not be
proved in accordance with law rather statements of CW.4 and 5 runs contrary to the stand of the
alleged sole legal heirs, therefore, I am of considered opinion that the trial Court rightly rejected
the compromise. If the deceased, before his death had divorced Mst. Waziran Bibi legally he was
bound to convey the factum of divorce to the Union Council c oncerned in writing. The alleged
sole legal heirs can well prove the factum of divorce to Mst. Waziran Bibi by the deceased by
producing the representative of Union Council alongwith record before the Court. The factum of
death of Mst. Rabia (wife) and Mst . Zuhra (daughter) is also required to be proved in accordance
with law. The issuance of their death certificates only on the basis of information conveyed by
deceased's brothers (without adopting the proper and legal course) by the CW.4 is also a matter
of grave concern and thereby he exposed himself to be taken to task because his act smacks
unofficial and irresponsible attitude. The learned counsel for petitioner though tried his best to
press for acceptance of compromise despite the above referred hurdl es but this court being
custodian of the fundamental rights of all the legal heirs of deceased cannot shut its eyes from
the illegalities, irregularities and suppression of material facts by the petitioner as well as the
alleged sole legal heirs. It may no t he irrelevant to mention here that every person who wants
indulgence of the court in any matter is legally and morally bound to approach the court with
clean hands, otherwise the general people will lose their faith in courts. I am afraid that the legal
heirs of the deceased on one hand wants acquittal of a convict in case registered under section
302, P.P.C. and on the other hand only by hoodwinking in the eyes of court and playing joke.
There is another aspect of the case which cannot he left unattended i.e. the son of deceased is
aged about 14/15 years (not adult) therefore, compromise by a person who has not attained the
age of puberty/immature is also questionable and a hurdle in petitioner's way which the later has
to cross by properly/legally satisf ying conscious of the court.
For the foregoing reasons, I am of the considered opinion that the order impugned passed
by the trial court is neither illegal, unlawful, without jurisdiction nor the same is perverse,
shocking or artificial, rather is bas ed on sound and legal footings, therefore, I have no reason to
set aside the same. However, the petitioner is at liberty to file fresh compromise after fulfilling
all the legal requirements before the trial court if he chooses so. If any compromise was fil ed
before the trial court, the latter is directed to decide the same on its own merits and without being
influenced from the instant order.
JK/63/Bal. Revision dismissed.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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