Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 25.1.2006 passed by a Division Bench of the Lahore High Court, Multan Bench, Multan, whereby appeal filed by the petitioner against his conviction and sentence recorded under Section 302(b)
PPC was dismissed and murder reference sent for conformation of death sentence was answered in the affirmative.
2. Facts of the case in brief are that the petitioner was tried by learned Sessions Judge, Lodhran, on the charge of murder of his father, namely, Allah Ditta. Petitioner was charged under Section 302(b)
PPC to which he pleaded not guilty and claimed trial. At the trial, prosecution, in order to prove the charge and substantiate the allegation levelled against the petitioner, produced seven witnesses in all. Eye witness account of the occurrence was furnished by PW-5 Allah Bakhsh and PW-6 Rustam. PW-2 Dr. Altaf Ahmad Khan had conducted post-mortem examination on the dead body of the deceased. On completion of the prosecution evidence the petitioner was examined under Section 342 Cr.P.C. In his above statement, the petitioner denied the charge and pleaded innocence. He produced two DWs, however, did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C.
3. On conclusion of the trial, the trial Judge convicted the petitioner under Section 302(b) PPC and sentenced him to punishment of "death" with the direction to pay a sum of Rs,50,000/- as compensation and in failure thereof to, further undergo six months R.I. Being aggrieved, the petitioner approached the High Court by way of Criminal Appeal No, 708 of 2001. Murder Reference No, 757 of 2001 was also sent to the High Court for conformation of the death sentence. A Division Bench of the Lahore High Court, Multan Bench, Multan, dismissed the appeal. Conviction and sentence recorded against the petitioner were maintained and the murder reference was answered in the affirmative.
4. Learned counsel for the petitioner, at the very outset, has submitted that since the matter has been compromised between 'the parties and all the legal heirs of the deceased have forgiven the petitioner in the name of Allah, therefore, he may be acquitted of the charge or else the sentence inflicted on him may be reduced. He has added that earlier a similar request was also made before the appellate Court but it was not accepted, because it was found by the learned High Court that since diyat falling in the share of Mst. Perveen, minor sister of the deceased, was not deposited by that time, hence partial compromise was not possible. He has maintained that learned Division Bench of the High Court has gravely erred in making the above observation, because as per report forwarded by District & Sessions Judge, Lodhran, Allah Ditta, deceased, had left behind, in addition to the petitioner, only, Muhammad Asghar, son, Mst. Nasreen Bibi, daughter, and Mst. Bashiran Bibi, another daughter as his legal heirs, the offence was compound by all the three and none of them was a minor. He has further added that during pendency of the petition, Cr. Misc. No, 455 of 2006 was moved, wherein while clarifying the above position, it was prayed that since another brother of the petitioner was also in jail, in case FIR No, 483/1999, and there was no other male member of the family available to lookafter the two young daughters, and there was every likelihood that not only they would be exposed to the rigours of time but their property would also be usurped by their relatives, in case the petitioner was executed hence, compromise may be accepted.
5. Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, appearing on behalf of the State, has though not disputed competence of the legal heirs of the deceased to compound the offence yet, has stated that since the petitioner has committed murder of his father, therefore, he does not deserve to be acquitted and adequate sentence of imprisonment should be inflicted on him, in case the sentence of death is commuted.
6. We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also perused the available record, minutely, with their assistance.
7. Though an application for acceptance of compromise was also filed in the High Court, yet it was not accepted, as it was found by the learned Judges in the High Court that diyat amount falling in the share of "minor Perveen Bibi" was not deposited. It appears that proper assistance was perhaps not rendered to the Hon'ble Judges in the High Court and it was wrongly presumed that Perveen Bibi was minor sister of the deceased whereas the facts appear to be other way round.
8. It would be pertinent to mention here that pursuant to Cr. Misc. Application No, 455/2006, learned District & Sessions Judge concerned was directed to furnish report regarding genuineness or otherwise of the compromise and also to ascertain as to by whom the deceased was succeeded.
In response to the query, learned District & Sessions Judge, Lodhran, vide Letter No, 1032, dated 24.9.2007 has reported that Allah Ditta had left behind, Mst. Pathani Mai, widow, Muhammad Anwar, (petitioner) and Muhammad Asghar, sons, Mst. Nasreen Mai and Mst. Bashiran Mai, daughters, as his legal heirs, out of whom Mst. Pathani Mai died on 20.8.1999. Statements of the rest of the legal heirs were recorded and they have confirmed that they have compounded the offence. He has through his Letter No, 1032, dated 24.9.2007 has also confirmed that none of the aforementioned legal heirs is minor and question of payment of diyat too, does not arise as all the legal heirs being major have stated that they have forgiven the petitioner in the name of Allah.,
9. It would not be out of place to mention here that though the offence of Qatl-i-amd, punishable with sentence of death or imprisonment for life as Ta'azir, can be compounded by all the legal heirs of the deceased under sub-section (2) of Section 345, Cr.P.C. yet, its acceptance within the purview of above provision, is dependent upon permission of the Court which has to be accorded keeping in view attending circumstances of each case. Reference in this regard may usefully be made to the cases reported as (i) Ghulam Shabbir & others v. the State (2003 SCM R 663) (ii) Muhammad Saleem v. The State (PLD 2003 SC 512), (iii) Muhammad Younis v. The State (2002 SCM R 1308) (iv)
Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCM R 1307).
10. Since in the instant case, the petitioner has committed murder of his own father and that too, in a brutal manner, without any cause, therefore we are not inclined to allow application for acceptance of the compromise as otherwise its effect would be of acquittal under Section 345(6)
Cr.P.C. However, since the petitioner has two young sisters, the other male member of the family i,e, his brother is behind the bars in another case and it has been pleaded that the girls would be exposed to the adversities of life, in case the petitioner is executed. therefore, while taking the compromise as a mitigating circumstance, we order that the sentence of death inflicted on the petitioner be commuted with imprisonment for life. In this view we are fortified by the observations made in the following reported judgments: (i)Muhammad Bashir v. The State (PLD 1982 SC 139)
(ii) Iftikhar Ahmad v. The. State (PLD 1982 SC 277).
(iii) Muzaffar alias Zafar Ali v. The State (1982 SCM R 695). (iv)'laved and another v. The State (1983 SCM R 557).
(v) Nazar Muhammad v. The State (1983 SCM R 631).
(vi)Nazar Muhammad v. The State (1983 SCM R 667).
(vii) Inayat Ullah and another v. The State (1984 SCM R 488).
(viii) Labah and another v. The State (1984 SCM R 1514).
(ix) Abdul Quddus v. The State (1985 SCM R 172).
(x) Muhammad Hanif v. The State (1985 SCM R 612).
(xi) Ejaz Ahmed alias Jhajja v. The. State (1985 SCM R 780).
(xii) Muhammad Aqeel alias Billa v. The State (1986 SCM R 1420).
(xiii) Inayat and 5 others u. The State (1988 SCM R 148).
(xiv) Abdul Hameed and 4 other's v. The State (1988 SCM R 1420).
11. Upshot of the above discussion is that the sentence of death inflicted on petitioner under Section 302(b) PPC, is reduced to that of imprisonment for life. Order regarding payment of compensation of Rs, 50,000/- under Section 544-A Cr.P.C. will remain intact. With the above modification in sentence, this petition is converted, into appeal and partially allowed.