P L D 2013 Balochistan 144
Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, JJ
THE STATE and another ---Appellants
Versus
HAMEED and another ---Respondents
Murder Reference No.8 and Criminal Appeal No.210 of 2012, decided on 12th March, 2013.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 309, 310, 311 & 323 ---Criminal Procedure Code (V of 1898), S.345 ---Qatl-e-
amd---Compromise ---Waiver ---Afw of Qisas ---Payment of Badal -e-Sulh---Compromise was
arrived at between accused and legal heirs o f the deceased, whereby legal heirs of the deceased
had waived their right of Qisas without accepting any Diyat or compensation, and prayed that
accused be acquitted of the charge ---Genuineness of compromise arrived at between the parties
was duly verified by the Sessions Judge ---Out of nine legal heirs of the deceased two were
minors ---Mother of said minors appeared before the court and recorded her statement on their
behalf, with the assertion that she had waived the right of Qisas on behalf of the minors being
their mother and natural guardian, and that she had forgone the Diyat ---Validity ---In view of
S.309, P.P.C., there could be no waiver of right of Qisas to the extent of minors, only right
available would be compounding of right of Qisas, which could be exercised by 'Wali' of minor
on their behalf ---Such right was further protected by the Proviso contained in subsection (2) of
S.309, P.P.C.; there must be an acceptance of "Badal -e-Sulh" and value of the same would not be
less than the value of Diyat ---Waiver of right of Qisas by mother of the minors on their behalf
without accepting any compensation, was neither legal nor just ---Condition provided in S.310,
P.P.C. of "Badal -e-Sulh", was to be observed being a legal requirement and without
determination of value of "Badal -e-Sulh", the right of Qisas could not be allowed to be
compounded ---Settlement arrived at between the parties only would amount to waiver or
compounding of right of Qisas, and order of acquittal was not its ultimate result ---Discretion lay
with the court to make an order of acquittal or conviction of the offender, keeping in view the
facts and circumstances of the case and nature of the offence ---Accused was acquitted of the
charge under S.302(b), P.P.C.; he would remain in custody until he paid the amount of 'Badal -e-
Sulh' determined as Rs.32,00,000 as per requirement of S.311, P.P.C. ---Said amount would be
deposited in the National Savings in the names of minors in equal shares until they attained
majority.
Muhammad Wasay Tareen, Pr osecutor -General for the State (in Murder Reference No.8
of 2012).
Sardar Ahmed Haleemi for Respondents (in Murder Reference No.8 of 2012).
Sardar Ahmed Haleemi for Respondents (in Criminal Appeal No.210 of 2012).
Muhammad Wasay Tareen, Prosecutor -General for the State (in Criminal Appeal No.210
of 2012).
Date of hearing: 28th November, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Being aggrieved of judgment dated 9th August
2012 of Sessions Judge, Mekran at Turbat, whereby the appellant was convicted for the offence
punishable under section 302(b) Pakistan Penal Code (P.P.C.) and awarded capital punishment
of death as Tazir for committing, Qatl -e-Amd of Mistri Yaqoob, with compensation of
Rs.100,000 (Rupees one lac) to the legal heirs of the deceased, and in default of payment thereof
further six months simple imprisonment, the instant appeal was filed with a prayer for setting
aside of the conviction, and his acquittal of the charge.
2. This appeal was admitted for hearing on 29th Augus t 2012. During course on 6th
September, 2012 an application bearing Criminal Miscellaneous Application No.96 of 2012 was
filed, with a contention that the parties had been arrived to a compromise and in result thereof the
legal heirs of the deceased Muhamm ad Yaqoob pardoned the appellant/convict, and also waived
their right of Qisas. It was prayed that the compromise be accepted, and he (appellant) be
acquitted of the charge. Along with the approved Proforma affidavits of the legal heirs of the
victim Muham mad Yaqoob affirming the fact of compromise were also filed. It was
accompanied with a certificate disclosing the details of the legal heirs of the deceased with
original special power of attorney executed in favour of Imam Bakhsh, one of the legal heirs b y
the remaining persons. In addition thereto an application was also submitted by the complainant
Imam Bakhsh, with a prayer for withdrawal of his case against the appellant.
3. As the offence of Qatl -e-Amd being compoundable in nature, therefore, the ma tter
submitted needs consideration. Therefore, to verify the genuineness of the compromise effected
between the parties, and also to determine the fact of effecting of the compromise without any
duress and compulsion, and also to confirm the details of the legal heirs of the victim, all the
relevant papers were marked to the Sessions Judge, Turbat with a direction to submit a
comprehensive report to the effect. In compliance thereof the first verification of the Sessions
Judge, Turbat was received on 2nd Oc tober 2012. But, it failed to reply the queries made in the
order. Further, the learned Deputy Prosecutor General also pointed out several discrepancies in
the papers submitted for acceptance of compromise, which were found genuine. Therefore, to
overcome the deficiency vide order dated 11th October, 2012 the Sessions Judge, Turbat was
directed to address the discrepancies, and submit report and also to obtain CNICs of the legal
heirs, to affirm the identity of the legal heirs. In compliance thereof second verification dated
19th October 2012 was received, but, it was also not in terms as required. But, it was observed
that two of the legal heirs namely Maqbool Ahmed and Munir Ahmed were described as minors,
as their ages were noted as 14 and 17 years respec tively. This fact did not find place in the papers
of the compromise, nor disclosed in accompanying affidavits, which amounts to concealment of
facts. The learned counsel for the appellant apologized for the omission, and made a request that
the matter may be again referred to Sessions Judge, Turbat, and the mother of the minors be
allowed to appear, and record her statement on their behalf, being their natural guardian. In order
to avoid any further hardships to the legal heirs of the victim the request wa s acceded to, and the
papers were again sent to the concerned Sessions Judge for the purpose. The third verification
dated 15th November, 2012 was received in compliance thereof.
4. The perusal of the papers pertaining to the effecting of the compromise between the
parties reveals that nine persons namely Zeba, Hameeda, Shakeela, Mst. Mahatoon, Muhammad
Hanif, Muhammad Sharif, Maqbool Ahmed, Munir Ahmed, and Imam Bakhsh were described as
legal heirs of the victim Muhammad Yaqoob. All the persons asserted to be entered into the
compromise. The affidavits of the persons, and their statements on oath before the Sessions
Judge concerned as CW -1 to CW -9 were recorded with an affirmation of the fact. Their
statement were to the effect that they had arrived to a settlement and had pardoned the appellant,
further, waived their right of Qisas without accepting any Diyat or compensation. To affirm the
status of the mentioned persons as legal heirs of the deceased Muhammad Yaqoob an attested
certificate issued by the signatures of the Assistant Commissioner Tump Kech was also obtained,
affirming the status of mentioned persons as survived by the victim. Further, on direction of this
court copies of CNICs of some of the legal heirs were also obtained, and annexed with t heir
statements. And the persons in whose favour CNICs had not been issued, their attested
photographs were obtained, and annexed with their statements for purpose of their identification.
5. On completion of the process of verification of the fact of co mpromise, and waiver of the
right of Qisas and Diyat on part of legal heirs of the deceased, the matter was finally heard. The
learned Prosecutor General showed his no objection on the papers of compromise and
acceptance thereof. While the learned counsel for the parties requested for acceptance of the
compromise, and in consequence thereof prayed for acquittal of the appellant. It was further
contention of the learned counsel that as two of the legal heirs are minors, therefore, to their
(minors') extent a n 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.
6. In the instant case the appellant was charged for the offence of Qatl -e-Amd of
Muhammad Yaqoob, and on completion of the trial he was found guilty of the offence, thereby
convicted and punished under section 302(b), P.P.C. and sentenced to death as Tazir. The
offence of murder compoundable in nature, while the right of the same vests with the legal heirs
of the victim w ith reference to section 345, Cr.P.C. In addition thereto a right of Waiver ( ) is
available to a sane adult "Wali" of a victim. In exercise thereof he can waive his right of Qisas
without acceptance of any compensation as provided under section 309, P.P.C .. But, section 310,
P.P.C. is an addition thereto, which also empowered a sane adult "Wali" of a victim to compound
his right of Qisas on accepting of compensation ( ). In view of the mentioned provisions only a
sane adult "Wali" can exercise the right of waiver or compounding to forgo the right of Qisas
with or without compensation. But, in both cases the discretion lies with the court to accept the
compromise or the settlement if it fulfilled all the legal requirement, and to make an order of
acquittal o r conviction of the offender keeping in view the facts and circumstances of the case
and nature of the offence. Therefore, a settlement arrived between the parties only amounts to
waiver or compounding of right of Qisas, therefore, an order of acquittal is not its ultimate result.
7. In present case seven of the adults Walis of the victim asserted to have waived their right
of Qisas without accepting any compensation, and they appeared and affirmed the fact. The
formal inquiry made by the Sessions Judge, Turbat, thereby affirmed the details of the legal
heirs, and the fact of effecting of compromise without any duress or compulsion, with their free
will by the mentioned persons being legal heirs of the deceased. It was to the extent of
satisfaction. But, t he matter remains for consideration to the extent of two legal heirs namely
Maqbool Ahmed and Munir Ahmed described as minors. It is to be dealt separately. Sections
309 and 310, P.P.C. specifically dealt with the situation if the right of Qisas vests in a minor
"Wali". Section 309, P.P.C. speaks about an "adult sane wali" being empowered to waive the
right of Qisas. But it is specifically provided therein that: --
"Provided that the right of Qisas shall not be waived:
(a) where the Government is the Wa li; or
(b) Where the right of Qisas vests in a minor or insance."
This provision placed an embargo on exercise of right of waiver on part of a minor being
Wali of a victim. Nor any other person can exercise such right on his behalf. But, section 310,
P.P.C. is an exception. Subsection (2) of the section is relevant, which reads as under: --
"(2) Where a Wali is a minor or an insane, the Wali of such minor or insane wali may
compound the right of Qisas on behalf of such minor or insane wali.
Provided that the value of Badl -e-Sulh shall not be less than the value of Diyat."
In present case on behalf of two minors their mother Mst.Mahatoon appeared before the
court and recorded her statement on their behalf, with an assertion that she had wai ved the right
of Qisas on behalf of the minors being their mother and natural guardian, and also forgone the
Diyat. But, in view of section 309, P.P.C. there can be no waiver of right of Qisas to the extent of
minors, rather the only right available would be compounding of right of Qisas, which can be
exercised by wali of a minor on his behalf. But, this right is further protected by the proviso
contained in subsection (2) of the section. There must be an acceptance of Badl -e-Sulh and value
of it shall not be less than the value of Diyat.
8. Keeping in view the legal aspect as discussed hereinabove, and the facts of the case a
decision is required about acceptance of the compromise and thereafter, determination of amount
of Badl -e-Sulh, for which the minor s found entitled. The facts as narrated in preceding paras, on
basis of the inquiry conducted, it can safely be concluded that the matter had been settled
between the parties, consequent thereof the Walis of the victim Muhammad Yaqoob pardoned
the appellan t Hameed, waived their right of Qisas, and have no objection on his acquittal.
Farther, the matter was also to the satisfaction of the court that all the adult legal heirs of the
deceased victim had entered into compromise without any duress and compulsion ; therefore, the
compromise to their extent is hereby accepted.
9. But, now the question remains to the extent of the minor legal heirs. Though the mother
of the minors waived their right of Qisas on their behalf without accepting any compensation,
which was neither legal, nor just. The condition provided in section 310, P.P.C. of Badl -e-Sulh is
to be observed being a legal requirement. Therefore, without determination of value of Badl -e-
Sulh the right of Qisas cannot be allowed to be compounded. As provi ded in section 310, P.P.C.
the value of Badl -e-Sulh shall not be less than the value of Diyat. Section 323 P.P.C. described
the value of Diyat, which shall not be less than the value of thirty thousand six hundred, and
thirty grams of silver, while he Fede ral Government is bound to declare the value of silver in
each year. This section further provided the criteria for fixation of Diyat amount, which is to be
determined keeping in view the financial position of the convict and the heirs of the victim. But
in each case it shall not be less than the value of silver so fixed. Keeping in view the law and the
circumstances of the case as there is nothing adverse before this court from which it can be
concluded that the settlement arrived by the legal heirs was pr oduced of fraud, coercion, or made
under compulsion, therefore, to the extent of minors also it is hereby allowed on acceptance of
Badl -e-Sulh fixed at Rs.32,00,000 (Rupees thirty two lacs), the value of silver fixed by the
Federal Government for year 2012 -2013.
10. In addition thereto keeping in view the facts of the case, and the circumstances which
resulted in commission of the offence not required awarding of any further conviction to the
appellant as Tazir. Rather, the punishment already undergone wo uld be enough in the
circumstances.
11. In view of the above discussion on accepting of the compromise submitted by the parties
the appellant Hameed son of Wahid, is acquitted of the charge under section 302(b), P.P.C., in
case pursuant to F.I.R. No.37 o f 2011, Levies Thana Tump District Kech. He be remained in
custody until paid the amount of Badl -e-Sulah determined as Rs.32,00.000 as per requirement of
section 311, P.P.C. It is further directed that on receiving of the amount of Badl -e-Sulah it shall
remain deposited in the National Savings Pakistan in the names of the minors Maqbool Ahmed
and Munir in equal shares until they attained majority.
The appeal stand disposed of in above terms.
The Murder Reference No.8 of 2012 is replied in negative fo r the reasons mentioned
hereinabove.
HBT/42/Q 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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