' KHALIL-UR-REHMAN RAMDAY, J.---Azmat and Mst. Nasreen petitioners . Are a real brother and sister, inter se. They are facing trial for the "Qatl-e-Amd" of their real father; of their stepmother and of their two step-sisters who were minor at the time of occurrence. On 21-7-2006, they submitted an application, before the learned trial Judge stating therein that all the adult "Walis" (the legal heirs) of the said deceased victims had granted "Afw" (pardon) to them in the name of Allah; that they be allowed to deposit the "Diyat" payable to the minor "Walis" and that they, then, be acquitted of the said charges.
2. Through his order, dated 28-10-2006, the said learned trial Judge refused to grant the said prayer and dismissed the said application with the following operative part:-- "(8) I find that Azmat Ullah accused is alleged to have committed murder of four innocent persons including two babies of tender ages in a brutal manner and in the present situation I find that compromise should not be allowed as two daughters and one son of Faiz Ahmed deceased who are real brother of 'Azmat Ullah accused would definitely intend to get their brother released at any cost, forgetting that he has brutally murdered their father as well as three innocent female including two babies of tender ages in the present situation, I do not allow the compromise and the prosecution will produce its evidence and the case will be decided on merits. The application is devoid of merits and the same stands dismissed."
3. The said petitioners approached the High Court seeking revision of the said order which was, however, declined in the following terms:-- "(2) The order of the learned trial Court has been perused which has been found to be in consonance with law and based on logical reasons. The discretion was lawfully exercised by the learned trial Court, thus no interference in the impugned order is called for."
4. Hence this petition praying ,that the said two orders be set aside and the accused persons be acquitted on account of the compromise reached between the parties.
5. The provisions of the Pakistan Penal Code and those of the Code of Criminal Procedure, as originally enacted in the years, 1860 and 1898 respectively, did not permit compounding of the offence of murder. It was in the year, 1990, through the Criminal Law (Second Amendment)
Ordinance No,XXI of 1990 that the original provisions of Chapter XVI of the P.P.C. Were omitted and were substituted by the new provisions and this is when the ice, in the said connection, started to melt. The so substituted provisions of section 302 P.P.C. Created a distinction in the matter of punishments awardable for "Qatl-e-Amd" (murder) i,e, punishment by way "of "Qisas" and the punishments imposable as "Tazir". And then the provisions of section 309 of the said Code, as reenacted; permitted waiver of the right of "Qisas" if a "Wali" granted "Afw" to the "Qaatil" (the murderer) while the provisions of section 310 thereof allowed compounding of the said right of "Qisas" on acceptance of "Bdle-e-Sulh" (compensation money). The said provisions of sections 309 and 310 of the P.P.C. Read as under:-- "309. Waiver-Afw of qisas. In Qatl-i-Amd.--(1) In the case of Qatl-i-Amd an adult sane wali.May, at any time and without any compensation, waive his right of qisas: ' Provided that the right of qisas shall not be waived.
(a) where the Government is the wali; or
(b) where the right of qisas vests in a minor or insane.
(2) Where a victim has more than one wali, any one of them may waive his right of qisas: ' Provided that the wali who does not waive the right of qisas shall be entitled to his share of diyat.
(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.
(4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender.
310. Compounding of qisas (Sulh) in Qalt-i-Amd.--(1)
In the case of Qatl-i-Amd, an adult sane wali may, at any time on accepting Badal-i-Sulh, compound his right of qisas: ' Provided that a female shall not be given in marriage or otherwise in Badal-i-Sulh.
(2) Where a Wali is a minor or an isane, 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 badal-i-sulh shall not be less than the value of Diyat.
(3) Where the Government is the wali,' it may compound the right of qisas: ' Provided that the value of Badal-i-Sulh shall not be less than the value of Diyat.
(4), Where the Badal-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to Diyat.
(5) Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.
' Explanation.--In this section Badal-i-sulh means the mutually agreed compensation according to Shariah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property."
6. In order to appreciate the scheme of law relating to compromises in murder cases and their resultant effect, it would also be of benefit to consider the provisions of section 311, P.P.C. The same read as under:-- "311. Ta'zir after waiver or compounding of right of qisas in Qatl-i-Amd.--Notwithstanding anything contained in section 309 or section 310 where all the walis do not waive or compound the right of qisas or if the principle of fasad-fil-arz is attracted the Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment for life, or imprisonment of either description for a term- which may extend to fourteen years but shall not be less than ten years as Ta'zir: ' Provided that if the offence has been committed in the name or on the pretext of honour; the imprisonment shall not be less than ten years.
' Explanation.---For the purpose of this section, the expression Fasad-fil-Arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience or the offence relates to honour crime, or if the offender is considered a potential danger to the community, or if the offence has been committed in the name or on the pretext of honour."
7. A perusal of these provisions would reveal that sections 309 and 310 of the P.P.C. Did not envisage acquittal of accused persons as a result of the said grant of "Afw" or as a consequence of the said compounding of the offence on payment of "Badl-e-Sulh". The most that could be achieved thereby was merely a waiver of the right of "Qisas" and no more which was also subject to the provisions of section 311 of the said Code whereunder, despite a grant of "Afw" or the compounding of the offence, the offender could still be punished even with death by way of "Tazir" (as per the amendment made through Act 1 of 2005), if the case was one of "Fasad-fil-Arz" or where all the "Walis" did not join in the compromise.
8. Acquittal of persons accused, inter alia, of commission of "Qatl-e-Amd" was however, authorized through an amendment of the provisions of subsection (2) of section 345 of the Code of Criminal Procedure (Criminal Law (Second Amendment) Ordinance 1 of 1991) which amended provisions, read with subsection (6) thereof, provided for acquittal of such-like persons if:--
(i) All the heirs Of the deceased victim joined in the compromise A reached with the accused and desired his acquittal; and if
(ii) the Court, keeping all the attending facts and circumstances in view, including the ones mentioned in section 311, P.P.C., blessed this compromise with its permission and could not find any reason to withhold the same."
9. The position which thus emerges from a perusal of the provisions of sections 309, 310 and 311 of the P.P.C. And of subsections (2) and (6) of section 345 of the Code of Criminal Procedure, is:---
(a) that grant of "Afw" or the compounding of the offence of "Qatle-Amd" under sections 309 and 310, P.P.C., respectively, meant only the waiver of the right of "Qisas" and not acquittal of an accused person;
(b) that where all the "Walis" did not join in the grant of "Afw" or in the compounding of the offence or where even when all the "Walis" did so join but the case was one of "Fasad-fil-Arz", the offender could still be punished by way of "Tazir" in view of the provisions of section 311 of the Pakistan Penal Code;
(c) that "Fasad-fil-Arz" had not been defined by the said Code though the provisions of the said section 311, P.P.C. Did explain the said concept;
(d) that it would not be wise or even appropriate to attempt a precise definition of the said expression which could restrict its area of operation but the examples of `Fasad-fil-Arz' could include cases of terrorism or, for instance, cases where a State functionary was murdered to deter him from performing his official duties;
(e) that acquittal of persons, accused amongst others of murder cases, as a result of a compromise, was envisaged, authorized and then even regulated by the provisions of subsections
(2) and (6) of section 345 of the Cr.P.C.;
(f) that even under the said provisions of section 345, Cr.P.C. Acquittal was not an automatic result of a compromise even if reached by all the heirs of a deceased victim of the offence;
(g) that such an acquittal had been made subject to the grant of permission by the competent court meaning thereby that even where all the heirs of a deceased victim entered into a compromise with the offender, the court could still, for valid reasons, withhold its permission to allow the compromise and could consequently refuse to acquit the accused;
(h) that it would again be neither possible nor even desirable to categorise cases into classes where such a permission should be granted or where the same should be withheld. Such a decision shall have to be taken by the concerned court after applying its judicial mind to all the attending facts and circumstances of a given case such as the past conduct and character of the accused person; the reasons leading him to committing the murder; the manner in which the said crime was committed-how reckless or brutal was such an act and of course the question whether the act in question amounted to "Fasad-fil-Arz".
10. It will thus be noticed that, as has been mentioned above, acquittal was not an automatic consequence of a compromise reached between the parties. Therefore, what would be required to be done by a court, on being informed of such a compromise, would be;
(a) to see whether all the heirs had joined in the compromise;
(b) to also see whether any of the "Walis" was a minor and if so, whether such a minor had also reached a compromise in accordance with the provision of section 313(2)(b) of the P.P.C. And if not then such a minor would have to be treated as a non-compromising "Wali";
(c) in case of a compromise by all the heirs, to find out whether the case was one of "Fasad-fil-Arz" and thus, not a case of acquittal despite such a compromise and in fact a case of punishment under section 311, P.P.C.; and
(d) to find out also whether any facts or circumstances existed which could persuade the court not to allow the compromise in terms of section 345(2) of the Cr.P.C.
11. What, therefore, follows is that, on hearing of a compromise reached between the parties, the court should not rush blindly to record acquittal of the accused person but should hold an inquiry to determine the facts in the preceding paragraph mentioned and it should then be, as a result of such an exercise, that the court should decide whether to acquit the accused person on account of a compromise or not. Where a compromise is claimed after the evidence has been recorded at the trial, it will be easy for the court to find the facts relevant for section 311, P.P.C. And for the purposes of section 345(2) of the Cr.P.C. But where a compromise has been reached before recording of evidence, it may be advisable for the concerned court to postpone its decision about the acquittal or otherwise of the accused person; to discover all the facts and circumstances which could assist such a court to find out whether the case was not one of "Fasad-fil-Arz" or a case where the court should withhold its permission to the compounding of the offence and might even require leading of evidence for the purpose and it should be then, after application of its judicial mind, that the court should take its decision about the acquittal or otherwise of the accused person. It may be added that whatever decision is taken by the concerned court, either way, should be reflected through a speaking order giving reasons for such a decision.
12. Reverting to the facts of the present case and judging the same by the standards laid down above and without making any deeper comments on the said facts lest the same may prejudice the proceedings which have yet to follow, suffice it to say that we have not been able to find any reason to interfere with the discretion exercised by the trial, Court and the High Court in withholding its permission to the compounding of the offences in question.
13. This petition is, therefore, dismissed. Leave refused.