' The instant criminal revision is directed against the order dated 7-2-2005 of learned Addl.
Sessions Judge, Multan dismissing the application of the petitioner for his acquittal on the basis of compromise submitted under section 345 Cr.P.C.
2. Brief facts of the case F.I.R. No.446 of 2003 dated 24-11-2003 registered under sections 302/201/109/34 P.P.C. And section 7 ATA 1997 with Police Station Gulgusht, Multan on the complaint of Mr. Rasheed Rehman, Advocate/Coordinator, Human Rights Commission of Pakistan, Multan are that Mst. Afsheen Mussarat-deceased daughter of Mussarat Hussain Sahoo, Advocate was forcibly married to her paternal cousin Noman Ahmad; she being unhappy with the marriage, left the house of her husband and shifted to the house of her maternal cousin at Rawalpindi; she was brought back from Rawalpindi two days before the day of occurrence. She died in mysterious circumstances and was buried without post-mortem examination. The complainant suspected that she had been done to death through electric shock. On such report of the complainant, the dead body of Mst. Afsheen Mussarat was exhumated and as per post mortem examination report the cause of death was found by strangulation. Hence, this case.
3. During the investigation of the case, the petitioner along with other co-accused was found guilty of the commission of offence, they were arrested and challan against them was submitted in the ATA Court under sections 302/364/102/109/34, P.P.C. On the application of the petitioner and other co-accused the case was transferred to the ordinary Court by Judge, ATA Court on 7-3-2004, which order was confirmed by this Court on 12-5-2004 in W.P. No.1879 of 2005. The application was sent to District and Sessions Judge, Multan, who vide his order dated 3-12-2004 entrusted the same to Additional Sessions Judge, Multan.
4. The petitioner moved an application under section 345, Cr.P.C. Before the learned Additional Sessions Judge, Multan for acquittal on the basis of compromise. The application was. Dismissed by Additional Sessions Judge, on the ground that all the legal heirs had not joined hands in seeking forgiveness of the accused/petitioner and even if they had done so, still it would be determined whether provisions of section 311, P.P.C. Are attracted or not. Hence, this petition for revision of the said order has been filed by the petitioner.
5. It is argued that all the legal heirs of Mst. Afsheen Mussarat had consented to the compromise with the petitioner and sought his acquittal. The compromise is absolutely essential for restoration of peace and harmony of the family. As far as a compromise, all of the legal heirs are concerned.
Baring the accused, all legal heirs had deposed before learned Additional Sessions Judge, that they have forgiven the accused Hamid Raza, Fazeel Raza and Mussarat Hussain Allah Ditta in the name of Almighty Allah. They were waived their right of Qisas and have no objection if the above- mentioned accused persons are acquitted from this case. Thereafter, all of them appear in this Court on 23-5-2005 and endorsed the statement made by them before the learned Additional Sessions Judge, Multan on 1-3-2005. This concludes the requirement of section 345, P.P.C.
6. The other point of law on which compromise was refused was that if they had forgiven the accused, whether at the time of conclusion of the trial it is to be determined as to whether provision of section 311, P.P.C. Is attracted or not. Learned counsel for the petitioner relying on (2002 PCr.LJ 16) and Ijaz alias Iji v. The State (2000 PCr.LJ 1116) argues that section 311, P.P.C. Is not attracted to the facts and circumstances of this case. The case is to be tried as Tazir there being no eye- witnesses of the case the requirements of section 304, P.P.C. Are not available. However, question of revocation of section 311, P.M. And any other section, the punishment does not arise. It is further argued that learned Additional Sessions Judge, Multan erred at law while dismissing the application of the petitioner on the terms that on the conclusion of trial it would be seen that 'whether provision of section 311, P.P.C. Is attracted -or not. In case titled Ijaz alias Iji v. State (2000 PCr.LJ 1116 Lah.) wherein it has been held by this Court that object given in section 311, P.P.C. Is very much clear, it intends to inflict punishment on those, who, notwithstanding the composition or waiver by "Walis" have to be visited with some penalty, not only for their propensity towards criminal acts, but its mode of barbaric execution. The inclusion of the term "Fisad-fil-Arz" has significant meaning and it is only those persons, who fall within its ambit can be convicted and punished under this section. If the Courts are invested with powers that in each and every case, irrespective of the composition and waiver Walis, they can punish the accused, then sections 309/310, P.P.C. Would become redundant and superfluous.
7. The mechanism provided under section 311, P.P.C. Manifestly suggests that even after waiver dr composition by the "Walis" heirs of the deceased, the Court is still empowered to convict the accused and punish him to imprisonment which can be extended to 14 years by way of Tazir, if all the Walis have not compounded or waived the right of A Qisas or the accused comes within the ambit of terms "Fisad-fil-Arz". In explanation appended to section 311, P.P.C. "Fisad-fil-Arz" has been defined to include the past conduct of the offender as being a previous convict, habitual or professional criminal and brutal manner in which the offence is committed,.
8. The plain interpretation of the explanation makes it abundantly clear that either accused is to be a previous convict or a habitual or professional criminal and the brutal manner in which the offence is committed. There is no evidence on record either of previous conviction of the petitioner or his being habitual or professional criminal or his grand-daughter was murdered in brutal manner. Therefore, he cannot be termed as "Fisad-fil-Arz" by any sketch of imagination.
9. Learned A.A.-G. Appearing on behalf of State argues that under section 345, Cr.P.C. a compromise is always the effect after the punishment or the sentence awarded to the accused may be affected with the permission of the Court before which any matter is pending. It is further argued that offence under sections 302 to 329, P.P.C. Is to be compounded by the legal heirs of the victim. The accused shall apply to the same Court, where the case is pending and it is for the trial Court to pass order keeping in view the nature of offence committed and to see whether compromise can be affected or not. He further argues that BadilSulah always comes into, when claim of the offence is admitted by a person seeking for the commission of said offence. It is further argued that the trial Court had to see under section 311 P.P.C., in view of the evidence, "Whether it is a case of "Fisad-fil-Arz" or not.
10. It is argued by Mr. Rashid Rehman, Advocate/Coordinate Human Rights Commission of Pakistan, Multan, who is also complainant of this case, that while compounding offence when a compromise has been reached between all the heirs of the deceased and the offender, it is duty of the Court not act blindly upon the said compromise and to acquit the culprits, but the Courts are required to 'consider all the attending facts and circumstances of the case and then to decide, whether, in the given situation the Court should or should not grant permission for compounding of offence. While doing so, it is duty of the Court to decide whether the case falls within the ambit of provisions of section 311, P.P.C. And whether the offender despite the permission deserves to be punished by way of Tazir under the said provisions of law. In the present case, learned trial Court had rightly refused the application of the petitioner holding that it is yet to be seen, whether the petitioner is to be tried and punished under section 311, P.P.C. Ornot. It is further argued that the case of the petitioner's falls within the definition of "Fisad-FilArz".
11. I have heard the learned counsel for the parties and perused the record and the law cited by the learned counsel. In the case of Qatl-eAmd section 302, P.P.C. The offence may be compounded by the heirs of the victim under subsection (2) of section 345, Cr.P.C. Similarly, under subsection (3) of section 345, Cr.P.C. Where the offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such offence is itself an offence) may be compounded in the like manner which means by the legal heirs of the victim.
12. In the present case, the trial is pending before Additional Sessions Judge, Multan in which no sentence, has been pronounced as yet. Subsection (2) of the section 345, Cr.P.C. Says that the offences punishable under this section of Pakistan Penal Code, as specified in the first two columns of the Table next following may be compounded by the person mentioned in the 3rd column of the table, with the permission of Court, before whom any prosecution for such offence is pending, be compounded by the legal heirs of the victim. So condition is laid down in this section that offence to be compounded only on completion of the trial and not before that. The bare reading of subsection (2) of section 345, P.P.C. Connotes that offence may be compounded with the permission of the Court before whom any proceedings or such offence is pending. Thus, arguments of the learned A.A.-G. That offence is only compoundable and application for compromise can only be entertained after the accused are convicted by the trial Court and not before that is rejected having no force.
13. All the legal heirs of the victim had deposed before the trial Court (Additional Sessions Judge) that they had forgiven the accused, Allah Ditta and waived their right of Qisas vis-a-vis the case of the petitioner. They have no objection on the acquittal of the accused. They again appearing before this Court on 23-5-2005 endorsed the statements given by them in the trial Court. The father of the victim is also one of the legal heirs and his statement has not been recorded by the trial Court. Although, he is an accused in the case, ye he shall be presumed to be innocent until proved otherwise. The learned trial Court shall also record his statement after summoning him from the Jail.
14. As far as the question of trial under section 311, P.P.C. Of the petitioner is concerned, it is only permissible when the Court declined permission for compromise and compounding the offence under section 345, Cr.P.C. As it has been held in Moula Bux v. The Sate (1992 M LD 1590) or where it is a case of "Fisad-fil-Arz". The expression "Fisad-filArz" as explained shall include the past conduct of the offender, or where he has any previous conviction; or the brutal shocking manner in which offence has been committed which is outrageous to the public conscience; or the offender is considered potential danger to the community. There is no evidence on the record to show that any of the conditions mentioned above are attracted to the case of the petitioner. He is not a previous convict. He has not committed any offence in A brutal shocking manner. The only allegation against him is that of abetment, which is yet to be proved. He is old man of 70 years of age, not in a position to commit such offence.
15. The "Qatl-e-Amd" liable to Qisas is yet to be proved. It is case of unseen occurrence; there is no eye-witness, who had witnessed the occurrence. There is no confession of the petitioner or other co-accused admitting the commission of offence. In such eventuality, the question of application of Qisas is ruled out. The legal heir of the victim, Mst. Afsheen Mussarat had forgiven the petitioner and others in the name of Allah Almighty and had no objection if he is acquitted. They had also waived their right of Qisas. Since the right of Qisas is waived without any compensation and compromise is affected between the petitioner and the legal heirs under section 309 and under section 310, P.P.C. Had forgiven the accused in the name of Allah Almighty. Under section 345(2), Cr.P.C. The offence under section 302, P.P.C. Has been made compoundable with the permission of the Court and the compromise is permissible by the legal heirs of the deceased, Mst. Afsheen Mussarat. In the case in hand, the legal heirs of the deceased filed their affidavits in which they had confirmed the factum of compromise and waiver of Qisas under section 302, P.P.C. They had also got recorded their statement to this effect before the trial Court. Since the legal heirs of the deceased, Mst. Afsheen Mussarat has compromised with the appellant, therefore, in view of clear- cut provisions of law this should be implemented on the compromise. The application of Tazir after waiver or compounding of right of Qisas in Qatl-e-Amd is applicable in those case where there is no compromise regarding the case as a whole and only right of Qisas is waived regarding the case as a whole and only right of Qisas is waived under section 309, P.P.C. Or there is a pending right of Qisas under section 310. Only then the discretion provided under section 311, P.P.C. Is available.
Learned trial Court has misread and misunderstood the provisions of section 311 P.P.C. After compounding of offence under sections 309 and 310 P.P.C. The Court is left with no option but to accept the compromise. In the case of compounding of offence also, however, in cases where the legal heirs of the victim voluntarily entered into a compromise or exercise right of waiver for good relations of the remaining family, prays of the parties or other lawful object, the same shall have to be accepted.
16. For the aforesaid reasons while taking into the wholesome view of the law on the subject, I am of the view that principal of section 311 P.P.C. Is not attracted in the case in hands, the judgment of the learned trial Court is set aside. The application made under section 345, Cr.P.C. Will be deemed to be pending and the trial Court, who is directed to record the statement of Mussarat Hussain accused, who is also one of the legal heirs of the deceased, victim and thereafter, 'shall decide the same in the light of the observation made by this Court. Disposed of.