This appeal is directed against the judgment dated 28-11-2002 passed by learned Additional Sessions Judge, Wazirabad, whereby, he convicted the appellant Mst. Rukhsana Bibi under section- 302(b), P.P.C. As Tazir and sentenced her to life imprisonment in case F.I.R. No,19 dated 6-2-2002 registered under section 302, P.P.C. At P.S. City Wazirabad for committing the Qatl-i-Amd of Mst.
Umme Kalsoom. The appellant was further directed to pay Rs,50,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. Or in default to further undergo for six months.
2. During the pendency of appeal Mst. Rukhsana Bibi appellant moved a petition i,e, Crl. Misc, No,1476-M/04 under section 345(5-A), Cr.P.C. Seeking acquittal on the basis of compromise with the legal heirs of the deceased copy of said petition along with its annexures was sent to the learned Sessions Judge, Gujranwala to verify the authenticity of legal heirs and the genuineness of the compromise and report was called for.
3. In order to determine the authenticity of legal heirs of the deceased the learned Sessions Judge called the list of legal heirs of the deceased from the S.H.O. Concerned as well as the Tehsildar Halqa. According to the list of legal heirs provided to the learned Sessions Judge by the concerned quarters the under mentioned are the surviving legal heirs of Mst. Umme Kalsoom deceased:-- (i)Muhammad SarwarSon (ii)Muhammad AnwarSon (iii)Mst. Fatima Bibi Daughter (iv)Mst. Hajran Bibi Daughter
4. The authenticity of the legal heirs of the deceased has been duly verified in the Court by Sh.
Muhammad Idrees, General Councillor, Union Council No,26/2 Urban, Wazirabad District Gujranwala, who also identified all the legal heirs of the deceased except legal heir Muhammad Anwar. The legal heirs who appeared before the learned Sessions Judge, Gujranwala have stated in unequivocal terms that compromise is without any coercion or undue influence; that they have extended forgiveness to the appellant waiving their right of Qisas and Diyat in the name of Allah the Almighty and that they have no objection on the acquittal of the accused/appellant. The learned Sessions Judge, Gujranwala has concluded through his report that the application of compromise to the extent of legal heirs of deceased, who appeared before him is genuine and voluntary with the accused/appellant. As far as legal heir Muhammad Anwar the remaining legal heir is concerned he is stated to be missing for the 10/11 years and his whereabouts are not known.
This fact was also verified in the Court of learned Sessions Judge by Sh.Muhammad Idrees identifier of the legal heirs.
5. As far as the legal heir Muhammad Anwar is concerned about whom it is stated that he is missing for the 10/11 years and nothing is heard about him, the presumption under Article 124 of Qanun-e-Shahadat Order, 1984 shall be as below:-- "When the question arises whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the Person who B affirms it."
Meaning thereby that it will be presumed that Muhammad Anwar legal heir of the deceased is not alive. So, having no other alternative except to come to the conclusion that legal heirs of the deceased who are alive have effected the compromise with the appellant/accused.
6. Learned counsel for the state after having gone through the report submitted by the learned Sessions Judge, Gujranwala submits that he has no objection if the compromise is allowed and the appellant is acquitted of the charge.
7. I have heard the learned counsel for the parties and gone through the report submitted by the learned Sessions Judge, Gujranwala. The compromise having been arrived at between the parties without any duress and coercion, to my mind, appears to be genuine which will promote harmony and peace amongst the parties. I have, therefore, no hesitation in accepting Crl. Misc. No,1476- M/04.
8. Resultantly this jail appeal filed by the appellant-convict is allowed on the basis of compromise arrived at between the parties. The conviction and sentence recorded against the appellant by the learned trial Court is set aside. She is in jail and she shall be released forthwith if not required to be detained in any other case.
9. However, so far as the above mentioned Muhammad Anwar legal heir of the deceased is concerned if he appears subsequently and if he does not waive his right of Qisas, he shall be entitled to his share of Diyat as provided in proviso to subsection (2) of section 309, P.P.C.