2011 Y L R 1833
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABDULLAH alias LALA ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.176 o f 2009, decided on 28th March, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 34 & 316 ---Criminal Procedure Code (V of 1898), S.345 ---Qatl-e-amd, acts
done by several persons in furtherance of common intention, qatl -e-shibh -i-amd---Power
of court v is-à-vis compromise reached by parties ---Convict made application for acquittal
on the basis of compromise, reached between the parties during pendency of appeal ---
Validity ---Ultimate result of compromise between the parties was not acquittal of the
accuse d person ---Court before which such compromise had been submitted was duty
bound to look into the matter in depth to ensure that the compromise was in accordance
with the relevant provisions of law ---Under S.345(2), Cr.P.C., the court was empowered
to pe rmit compounding of offences mentioned therein ---Legal heirs of the deceased,
in the present case, had pardoned the accused/convict while no objection was raised
by the State to the compromise --- Convict / accused was acquitted of the offence.
(b) Criminal Procedure Code (V of 1898) ---
----S. 345 ---Compromise between the parties ---Powers of court ---Scope ---Under
S.345(2), Cr.P.C., the court was empowered to permit compounding of offences
mentioned therein.
Arbab Tahir fo r Appellant.
Miss Sarwat Hina, Additional Prosecutor -General for the State.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J .---The appellant Abdullah through instant appeal
challenged judgment dated 3 -6-2009 of Additional Sessions Judge -IV, Quetta, whereby
he has b een convicted for the offence of Qatl Shibhi -Amd as defined under section 316,
P.P.C., while awarded punishment to suffer rigorous imprisonment for a period of ten
years, and to pay an amount of Rs.12,00,000 as Diyat to the legal heirs of deceased
Naimatul lah. The appellant was initially Incharged for the offence under section 302,
P.P.C., but on conclusion of trial, the learned trial Judge, reached to the conclusion, that
the offence made out against the appellant is of Qatl Shibhi -Amd, as defined in secti on
316, P.P.C. thus awarded him sentence for the offence as mentioned hereinabove.
During pendency of appeal, an application was moved by the appellant with
contention, that the parties have arrived to a compromise out side the court, which is
requested t o be accepted, and appellant be acquitted of the charge. The papers of
compromise along with application were submitted by legal heirs of deceased
Naimatullah. In order to verify the fact of effecting of compromise between the parties,
the relevant papers were sent to trial judge i.e. Additional Sessions Judge -IV, Quetta, who
submitted his report dated 15 -2-2011, confirming effecting of compromise between the
parties. The legal heirs of the deceased, his father namely Wali Jan, mother namely Mst.
Sakina an d brother Daru Khan, while appearing before the trial Court confirmed
execution of Compromise Deed with appellant Abdullah, thereby affirmed the fact of
granting pardon to the appellant in name of Almighty Allah, by waiving their right of
Qisas and Diyat. The statements of legal heirs were also recorded by the trial Court on
oath, whereby they have confirmed the contents of Compromise Deed, further affirmed
that they have pardoned the appellant, and also forgone the Diyat amount. It is to be noted
that Addi tional Sessions Judge -IV, Quetta, though have verified effecting of compromise
between the parties, but he did not make efforts for verification of the list of
legal heirs attached to the papers of compromise, which shows negligence on part of
the trial Court. But as admittedly father and mother of the deceased are alive, and
also appeared before the court, in their presence as per their personal law no one else
can be included in purview of "WALI" of the deceased as defined in section 299(m),
P.P.C., read with section 305, P.P.C.
Though the matter has been compromised between the parties, and legal heirs of
deceased have forgiven the appellant/convict, and also forgone their right of Diyat, but it
must be clear t o the all concerned that ultimate result of compromise, arrived between the
parties, is not automatic acquittal of the accused person/convict, father before making any
order, the court, before which such compromise has been submitted, is duty bound to look
into the matter in depth, thereby affirmed the fact of effecting of compromise between the
parties, and in addition keeping in view the nature of the offence alleged or proved
against the accused person/convict, and also other circumstances of the case, t hereafter,
arrived to the conclusion either accepting the compromise or otherwise, specifically
having in sight the relevant provisions of law i.e. provisions of sections 309 and 310
along with section 338 -E, P.P.C. and also the provisions of section 345, Cr.P.C. It is
specifically provided in first proviso of section 338 -E, P.P.C. that: --
Section 338 -E.---
Provided that, where an offence has been waived or compounded, the Court may,
in its discretion having regard to the facts and circumstances of the ca se, acquit or
award tazir to the offender according to the nature of the offence."
While subsection (2) of section 345, Cr.P.C. also empowers the court to the effect
that the offences mentioned therein be compounded, only with permission of the court.
Thus keeping in view the above mentioned provisions of law, the compromise, in all
cases, does not result into acquittal of accused person, rather he can be punished for a
term as tazir as provided therein. The power vests in the court, which is to be exercis ed
judiciously.
In present case, the offence made out against the appellant is of Qatl Shibh -i-amd,
while he has been awarded sentence of imprisonment for a period of ten years, with
payment of Diyat amount of Rs.12,00,000. Keeping in view the material pr esent on
record, the appellant being man of young age and closely related to the victim, and the
circumstances in which the act has been committed, which shows sudden happening of
the act, without premeditation. Further, parents of the deceased Naimatullah have not
only forgiven the appellant, but also waived their right of Diyat. Furthermore, there is
nothing on record, which showed the criminal conduct of the appellant, or he being
previously involved or convicted in any other offence. Thus in the circums tances, as legal
heirs of deceased Naimatullah have pardoned the appellant, and there are no grounds,
which can justify punishing him in Tazir. Further, he has already suffered for the act,
which he has committed. There is also no objection on effecting of compromise, or
acceptance thereof, from the side of the State.
Keeping in view the above mentioned facts and discussion made thereon, the
compromise submitted by the parties is hereby accepted. The judgment dated 3 -6-2009 of
Additional Sessions Judge -IV, Quetta, whereby the appellant has been convicted for the
offence, is hereby set aside. Therefore, appellant Abdullah son of Abdul Ghafoor is
acquitted of the charge, pertaining to F.I.R. No.113 of 2008, Police Station Kuchlak,
District Quetta. He be rele ased at once, if not required in any other case.
A.R.K./23/Q Disposed of.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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