2018 P Cr. L J 26
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
MUHAMMAD NASEEM and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No. 309 and Criminal Revision No. 19 of 2015, decided on 2nd May, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) --- Criminal Procedure Code (V of 1898), Ss. 345(2) & 561- A--- Qatl-i-amd---
Appreciation of evidence --- Compromise ---Appellants were convicted and sentenced for life
imprisonment as tazir ---Appellants had challenged their conviction through appeal, whereas
complainant filed revision petition for enhancement of sentence awarded to the appellant ---
Pending appeal, appellants had entered into compromise with the legal heirs of the deceased,
who had pardoned the appellants ---Compromise documents were sent to the Trial Court for
verification and recording the statements of the legal heirs of deceased to confirm as to whether the compromise effected between the parties was genuine or otherwise ---Record
showed that deceased had eight legal heirs comprising one widow and seven children---Out
of seven children only one son and one daughter were major, while rest were minors being below the age of 15 -years ---Trial Court had recorded the statements of complainant, real
brother of deceased, widow, a major son and a major daughter of deceased---Record showed that legal heirs of deceased entered into compromise with the accused -appellants voluntarily
and without any coercion--- Legal heirs of deceased had verified the contents of compromise
deed as they pardoned the accused- appellant in the name of Almighty Allah and did not
intend to proceed further against the accused -appellants ---Right of Diyat had been waived by
the legal heirs of deceased ---Trial Court confirmed that the compromise arrived at between
the parties was genuine ---Compromise deed was supported by the affidavits of the legal heirs
of the deceased ---Since the offence under S. 302(b), Penal Code, 1860 was compoundable
and parties had entered into compromise, as s uch application under S. 345(2), Cr.P.C. was
accepted subject to payment of Diyat amount as per S. 323, Penal Code, 1860 to the extent of minors ---Accused -appellants were acquitted in circumstances by setting aside conviction and
sentence recorded by the T rial Court.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 309 & 338(E) ---Criminal Procedure Code (V of 1898), S.345---Qatl -i-amd---
Punishment as Tazir ---Compounding of offence ---Principles ---Section 309, P.P.C. pertaining
to waiver and S. 310, P.P.C. to compounding in case of murder were relevant only to the case
of Qisas ---Matter of compromise between the parties, in case of Tazir, was governed and
regulated by the provision of S. 345(2), Cr.P.C. read with S. 338- E, Penal Code, 1860.
Abdul Jabbar v. T he State and others 2007 SCMR 1496 rel.
Adnan Ejaz and Zia -ul-Haq for Appellants.
Muhammad Yahya Baloch, D.P.G. for Respondents.
Date of hearing: 19h April, 2017.
ORDER
ABDULLAH BALOCH, J. ---This order disposes of Criminal Appeal No. 309 of
2015, filed by the appellants Muhammad Naseem and Muhammad Qasim, both sons of
Habibullah, challenging their conviction under section 302(b), Qisas and Diyat Ordinance
vide judgment dated 21st September, 2015 (hereinafter "the impugned judgment") passed by the learned Sessions Judge Pishin (hereinafter "the trial Court") in case FIR No. 21/2013 Levies Thana Huramzai and application under section 345(2) read with section 561- A,
Cr.P.C. along with compromise documents filed by the complainant and the legal heirs of deceased Haji Nizam, for accepting the compromise.
2. The facts of the case are that the appellants were convicted vide impugned judgment
by the trial Court under section 302(b), Qisas and Diyat Ordinance and sentenced to suffer R.I for life imprisonment as Ta zir with compensation of Rs.20,00,000/ - (twenty lakh) to be
paid to the legal heirs of deceased as per provisions contained under section 544- A, Cr.P.C.
or in default to suffer R.I. for 02 years each, with the benefit of section 382- B, Cr.P.C. for
causing murder of Haji Nizam while making firing with fire arms. Both the appellants were
tried by the learned trial Court and on conclusion of trial, they were convicted and sentenced as mentioned above.
3. The appellants have challenged their conviction through the instant appeal, while the
complainant has filed a Criminal Revision Petition for enhancement of sentence awarded to the appellants, which were admitted for regular hearing, but during pendency of the same, the appellants have entered into compromise wi th the legal heirs of the deceased Haji Nizam,
who have pardoned the appellants. It appears from the record that on 19th December, 2016 the complainant along with his counsel appeared before this Court and verified the factum of compromise deed, thus the a ppellants were granted conditional bail till realization of
compromise deed. The compromise documents have been submitted by the appellants before this Court for acceptance of the same.
4. On 28th March 2017, the compromise documents were sent to the learned Sessions
Judge, Pishin for verification and recording the statements of the legal heirs of the deceased to confirm as to whether the compromise effected between the parties is genuine or otherwise. During inquiry, the Naib Tehsildar Sajjad Gul submitted the list of legal heirs of
deceased, which reveals that the deceased had eight legal heirs i.e. widow Bibi Rahima and seven sons and daughters i.e. Bibi Wasi (19- years), Ainuddin (18 years), (Pai Rawana (15
years) Bibi Waseela (13 -years), Bibi Sabira (7 -years), Bibi Shahida (5- years) and Bahauddin
(4-years). It appears that out of seven sons and daughters only Bibi Wasi and Ainuddin are
major, while rest are minors being below the age of 15- years. The court below summoned all
the legal heirs of deceased fo r recording their statements and confirming the genuineness of
compromise. Pursuant to which, the statement of complainant Shamsullah (brother of deceased), Mst. Bibi Rahima (widow of deceased), Bibi Wassi (daughter of deceased) and Ainuddin (son of deceas ed) were recorded as CW -1 to CW -4, who in their statements
verified the contents of compromise deed and identified their thumb impressions upon the
same. The learned Court below transmitted the compromise documents along with his report
to this Court.
5. Learned counsel for appellants stated that the alleged offences are compoundable and
the parties outside the Court without any coercion or pressure have compromised the matter and have pardoned the appellants for the sake of Al -Mighty Allah by waiving of th eir right of
Diyat also; that the queries so made by this Court also affirms that the compromise arrived between the parties is genuine and legal and there is no legal bar to acquit the appellants of the charge by accepting the compromise.
6. Learned Deput y Prosecutor General did not oppose the acceptance of the compromise
effected between the parties subject to deposit of Diyat amount to the extent of minor legal heirs of deceased, therefore, to their (minor's) extent an order is required to determine the shares of the minors in Diyat amount and also the method/mode of its payment as required by
law.
7. Heard the learned counsel and perused the available record. Record reflects that
pursuant to the directions of this Court, the learned Sessions Judge Pishin recorded the
statements of complainant (brother of deceased) and three legal heirs i.e. widow Bibi Rahima
and major daughter Bibi Wasi and major son Ainuddin. Perusal of the statements of the legal heirs of deceased, reveals that they have entered into compromise with the appellants voluntarily and without any coercion and that they have pardoned the appellants in the name of Almighty Allah and do not intend to proceed further against the appellants, besides they have also waived of the right of Diyat. The Court below in its report has also confirmed that
the compromise arrived between the parties is genuine. The compromise documents
including the pro forma prescribed by the Hon'ble Supreme Court in original have been thumb impressed by the legal heirs, sig ned as well as thumb impressed by the appellants. The
compromise deed is supported by the affidavits of the Legal Heirs of the deceased, thus there is no bar to accept the compromise deed to the extent of major legal heirs of deceased.
8. So far as, the co mpromise deed to the extent of legal heirs of deceased, who are
minors, is concerned, the Hon'ble Supreme 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 case of mur der are relevant only to cases of Qisas and not to cases of Tazir. Reference is
taken to case reported as Abdul Jabbar v. The State and others, 2007 SCMR 1496, wherein the Hon'ble Supreme Court of Pakistan clarified that in case of Tazir the matter of comp romise between the parties is governed and regulated by the provisions of section
345(2), Cr.P.C. read with section 338E, P.P.C. In the instant case the appellant had been sentenced under Tazir, therefore, provision of clause (2) of section 338- E, P.P.C. w ould
apply.
9. Since the offence under section 302(b), P.P.C. is compoundable and the parties have
entered into compromise, as such, application under section 345(2), Cr.P.C. read with section 561-A, Cr.P.C. is accepted subject to payment of Diyat amount a s per section 323, P.P.C. to
the extent of minor legal heirs of deceased i.e. namely Pai Rawana (15 years) Bibi Waseela (13-years), Bibi Sabira (7 -years), Bibi Shahida (5- years) and Bahauddin (4- years). While
giving effect to the compromise, without touchi ng the merits of the case, the impugned
judgment dated 21st September, 2015 passed by the learned Sessions Judge Pishin in case FIR No.21/2013 Levies Thana Huramzai is set aside, the appellants Muhammad Naseem and Muhammad Qasim, both sons of Habibullah, a re acquitted of the charge under section
302(b), Qisas and Diyat Ordinance, 1979 subject to payment of Diyat amount to the extent of
minors. It is further directed that on receiving of the amount of Diyat it shall remain deposited in the National Savings P akistan in the names of the minors in equal shares un- till
they attain majority. The learned Sessions Judge Pishin is directed to ensure the deposit of Diyat amount to the extent of minors by the appellants after determination of shares as per prevailing v alue of Diyat amount fixed by the Federal Government Copy of this judgment be
sent to learned Sessions Judge Pishin.
The appeal stands disposed of in the above terms.
Consequent to the above, the Criminal Revision Petition being not pressed is
dismissed as withdrawn.
JK/76 -Bal. Order accordingly.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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