' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---The appellant, namely, Niaz son of Allah Bakhsh along with Yousaf son of Allah Bakhsh, Sher Dil son of Sanwal and Allah Bakhsh son of Sanwal had been tried'by the learned Additional Sessions Judge, Rajanpur for the murder of Mst. Mooran, daughter of Mst. Amiran widow of Muhammad Shafi complainant in case F.I.R. No,88, dated 25-6- 2002, registered with Police Station Bangla Ichha, District Rajanpur for an offence under section 302/34, P.P.C. The learned trial Judge by virtue of his judgment, dated 19-4-2005 found the appellant guilty of the said charge, convicted him under section 302(b). P.P.C. And sentenced him to imprisonment for life with further direction to pay a sum of Rs,50,000 to the legal heirs of deceased as compensation under section 544-A, Cr.P.C. Or in default of payment thereof, to undergo imprisonment for six months. The learned trial Judge, however, by giving benefit of doubt to Yousaf, Sher Dil and Allah Bakhsh acquitted them of the charge.
2. The appellant by filing the instant appeal has called in question the conviction and sentence awarded to him through the impugned judgment. During pendency of the same, an application under sections 309/310, P.P.C. Read with sections 345 and 561-A, Cr.P.C. Bearing Cr1.Misc.No,696/M of 2008 had been filed on behalf of the appellant seeking his acquittal on the basis of compromise arrived at between the parties.
3. Report with regard to the genuineness of the compromise was requisitioned from the learned Sessions Judge, Rajanpur, which has been received. A perusal thereof reveals 'that Mst. Mooran Mai deceased was survived by her mother Mst. Amiran Mai, two brothers, namely, Shaukat Hussain, aged 8 years and Kareem Khan, aged 5 years, Mst. Amiran Mai appeared before the learned Sessions Judge and got recorded her statement deposing therein that compromise had been effected between the parties and she on her behalf as well as on behalf of minor children had compounded the offence in the name of Almighty Allah Waiving their right of Qisas and Diyat, as the appellant is her close relative and is not in a position to pay Diyat amount in respect of minors, They further stated that she did not have any objection to the acquittal of the appellant.
' Insofar as Diyat amount to the extent of share of the minors is concerned, their mother or father or Wali cannot waive the same. According to the report of the learned Sessions Judge, his predecessor had considered the amount of Diyat qua share of the minors as Rs,96,790.50 for each of the brothers of the deceased, but this Court being not satisfied had referred the matter again to the learned Sessions Judge for evaluating the Diyat amount as per latest Notification issued by the Government in this regard. In response thereto, the learned Sessions Judge opined that Mk. Mooran Mai deceased died issueless and there is no existence of Zahid Hussain being son of Mst. Mooran Mai deceased and the following are her legal heirs:--- 1 Mst. Amiran Mai Mother of deceased.
2 Shaukat Hussain Brother of the deceased (adult)
3 Kareem Khan Brother of the deceased (minor)
' It has been reported that the alleged murder of Mst. Mooran had taken place in the year, 2002 and according to Notification for the year, 2002, Diyat amount was Rs,2,90,372 and after excluding share of mother and adult brother Shaukat Hussain, the share of Kareem Khan comes to Rs,1,20,988.50 and according to the latest Notification for the year, 2009, Diyat was fixed as Rs,11,02,680 and after excluding the share of Mst. Amiran Mai and Shaukat Hussain, the share of Kareem Khan comes to Rs,4,59,450.
4. It has been argued by the learned counsel for the appellant that Diyat, which was prevalent at the time of occurrence i.e. For the year, 2002 will be given to the legal heirs of the deceased. I do not agree with the contention raised by the learned counsel for the appellant.
' Reliance can advantageously be made to the case of Government of Punjab, Lahore v. Abid Hussain and others PLD 2007 SC 315, wherein a Full Bench of the Honourable Supreme Court of Pakistan headed by Honourable Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice, had directed the Federal Government to frame rules under section 338-G, P.P.C. To give effect to sections 331, 337-X and 337-Y, P.P.C. Providing mechanism for creating the funds for the purpose of making payment of Diyat, Arsh and Daman of the convicts, who, on account of their weak financial position were languishing in jails for want of making the said payment, within a period of three months. It was further directed that while framing the rules the possibility may also be examined as to whether out of the funds created, soft loans could be extended to the convicts, enabling them to satisfy the claim of the legal heirs of the deceased or victim. Simultaneously it would also be examined whether it would be possible for the Government to provide jobs to the convicts, other than the Government Departments through social organization or philanthropist, enabling the convicts to disburse the amount of loan, if extended to them; that a provision be also made available in the rules that in appropriate cases, the trial Court may examine the question of release of such prisoners on parole, who, after having served out the substantive sentence of imprisonment, if any, are confined in jails on account of non-payment of Diyat, Arsh and Daman; as an interim arrangement, the convicts, who have already undergone substantive imprisonment but are in jails all over the country due to non-payment of Diyat or Arsh, shall be released forthwith under sections 331(1) and 337-X, P.P.C., subject to furnishing security to the satisfaction of the District and Sessions Judge concerned for a period of three years, enabling them to make the payment of Diyat and Arsh at their own resources in lump sum or in equal installments, or taking loans from the funds, created by the Government. Similarly, the convicts who are in the jails only on account of non-payment of Diyat or Arsh, as no substantive imprisonment was awarded to them in accordance with law, shall also be released forthwith in the same manner, as noted herein above.
If the amount of Diyat and Arsh is not paid by a convict within the stipulated period, he shall be dealt with under sections 331(2) and 337-X(2), P.P.C., the Federal Government shall also evolve a mechanism to ensure that the rights of the victims i.e. Heirs of deceased and the injured for the purpose of Diyat, Arsh and Daman are equally protected by making specific provision in the rules; the Federal Government shall also examine whether the period of three years under sections 331 and 337-X, P.P.C. Can be enlarged up to seven years, Similarly, in section 337-Y, P.P.C., relating to payment of Daman, same provision will be incorporated as previously no such period was provided perhaps on account of some omission; the above arrangements shall continue till the framing of the rules by the Federal Government. Thereafter, the cases of such convicts shall be dealt with accordingly, under the said rules. In compliance of the said judgment, Pakistan Penal Code (Third Amendment) Ordinance (LIX of 2007) was promulgated on 3-10-2007, whereby period of three years was converted into five years in section 331, P.P.C.
' In order to resolve the question as what quantum of Diyat is to be imposed upon the convict, I would like to reproduce section 323, P.P.C., which is as follows:--- "323. Value of Diyat.--- (1) The Court shall, subject to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of Diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.
(2) For the purpose of subsection (1), the Federal Government shall, by Notification in the official Gazette, declare the value of silver on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year."
It is well-settled principle of law that the Courts are at liberty to determine the amount of Diyat as they deem fit, but they are restricted by law not to award the Diyat amount less than the value of 30630 grams of silver. As such, no maximum limit for the quantum of Diyat is prescribed. In view of this situation, the courts are to ascertain Diyat considering the circumstances of the case, financial position of the convict as well as that of the legal heirs of the victim.
5. For what has been discussed above, I am of the view that the share of Diyat to the extent of minor Kareem Khan has rightly been fixed by the learned Sessions Judge in his report according to Notification for the year, 2009 as Rs,4,59,450.
6. As it is admitted by Mst. Amiran Mai in her statement that the appellant being her close relative is not in a position to pay the Diyat amount to the extent of share of Kareem Khan minor, the learned counsel appearing on behalf of the appellant submitted that this Court keeping in view the provisions of section 331, P.P.C. May pass an order for payment of the Diyat by the appellant in instalments within five years and the appellant may be released from custody on submitting surety bond for the said Diyat amount.
7. Keeping in view the afore-said situation, I am satisfied with regard to the genuineness and correctness of the legal heirs of the deceased and voluntary nature of the compromise arrived at between the parties.
8. As regards payment of Diyat to the extent of minor's. Share, I am not inclined to accede to the prayer made by the learned counsel for the appellant in toto, however, I may observe that Diyat amount of Rs,4,59,450 falling in the share of Kareem Khan minor legal heir of the deceased shall be paid by the appellant in equal monthly instalments of Rs,7657.50 per month in five years,
9. For what has been discussed above, I accept this appeal on the basis of compromise, set aside the conviction and sentence of the appellant and acquit him of the charge. However, he is directed to pay Diyat to the extent of Kareem Khan, minor legal heir of the deceased, in equal monthly instalment of Rs,7657.50 in five years, and in case of default in payment of monthly instalment, he shall be remitted to custody as to suffer simple imprisonment till payment of Diyat. He shall be released from custody, subject to his furnishing surety bond for the amount of Diyat to the satisfaction of the trial Court. Criminal Miscellaneous No,696/M of 2008 also stands disposed of.