Zulfiqar Ali alias Bhutto son of Maqsood Ahmad and Irshad Ahmad son of Barkat Ali alongwith Muhammad Khalid and Muhammad Ashiq sons of Maqsood Ahmad had been tried by the learned Sessions Judge, Narowal in a private complaint under Section 302/34 P.P.C. filed by Mst. Sughran Bibi widow of Noor Hussain for the murder of her son Mazhar Ali deceased. The learned trial Judge by virtue of his judgment dated 29.11.2005 found the Zulfiqar Ali alias Bhutto and Irshad Ahmad guilty of the said charge, convicted them under Sections 449/34, 302(b)/ 109 and 302/34 P.P.C. and sentenced them as under:--
(I) UNDER SECTION 449/34 P.P.C.: Both of them to undergo imprisonment for life each with a fine of Rs, 50,000/- each or in default of payment thereof to further undergo simple imprisonment for three months each.
(II) UNDER SECTION 302(b) P.P.C.: Both of them to undergo imprisonment for life each with further direction to pay a sum of Rs, 1,00,000/- each to the legal heirs of the deceased by way of compensation under Section 544-A Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months each.
(III) UNDER SECTIONS 302(b)/109 P.P.C.: Zulfiqar Ali, co-accused, to suffer imprisonment for life.
The sentences awarded to both of them were ordered to run concurrently, however, benefit of Section 382-B Cr.P.C. was also extended to them.
The learned trial Judge by giving benefit of doubt to their co-accused, namely, Muhammad Khalid and Muhammad Ashiq acquitted them of the charge.
2. The convicts, namely, Zulfiqar Ali alias Bhutto and Irshad Ahmad by filing separate appeals bearing Criminal Appeals No, 1950 and 2055 of 2005, respectively, have called in question convictions and sentences awarded to them vide the impugned judgment. During pendency of these appeal, initially an application under Section 109 P.P.C. read with S. 345 Cr.P.C, bearing, Crl.
Misc. No, 1219/M of 2006 had been filed on behalf of Zulfiqar Ali alias Bhutto (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 had been requisitioned from the learned Sessions Judge, Narowal, who on 2.10.2006 reported that legal heirs of Mazhar Hussain deceased. Namely, Mst. Sughran Bibi, his mother, Zafar Ali, Qamar Ali his brothers, Mst. Shabana Akhtar, Mst. Rizwana Kausar and Mst. Farzana Kausar, his sisters, had pardoned Zulfiqar Ali alias Bhutto appellant in the name of Almighty Allah waiving their right of Qisas and Diyat and that they had no objection to his acquittal. On receipt of this report, this Court keeping in view the fact that the appellant had also been convicted under Section 449/34 P.P.C. and the said offence is not compoundable did not accede to the compromise and ordered fixation of the main appeal alongwith the appeal of Irshad Ali appellant for hearing on its turn. Thereafter, an application under Section 426 P.P.C. moved on behalf of Zulfiqar Ali appellant seeking suspension of his sentence was allowed 7.2.2007 on the basis of said compromise. During the interregnum, an application bearing Crl. Misc. No, 770/M-2009 was moved on behalf of the Irshad Ali (appellant in Crl. A. No, 2055/2005) seeking his acquittal on the ground that legal heirs of the deceased have also entered into compromise with the appellant and report to this effect has also been received from the learned Sessions Judge in the positive on the lines as afore-stated. I propose to dispose of both these appeals together through this single judgment.
4. Although the prayer of Zulfiqar Ali alias Bhutto appellant for his acquittal on the basis of compromise arrived at between the parties was not accepted at that occasion, but keeping in view the fact that the legal heirs of the deceased have forgiven both the appellants and compounded the offence of murder of Mannar Hussain deceased in the name of Almighty Allah waiving their right of Qisas and Diyat I am of the view that the parties have arrived at compromise in order to bury their hatchets once for all and refusal of compromise in view of the conviction of the appellants under Section 449/34 P.P.C. will not be fair enough.
The legal heirs of the deceased appeared before me on 27.3.2009 and admitted the factum of compromise, hence, 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.
5. In view of the above situation, I set aside the convictions and sentences of the appellants under Sections 302(b), 302(b)/109 P.P.C. and acquit them of the said charge.
6. As regards conviction of the appellants under Section 449/34 P.P.C, it has been observed that the said offence is not compoundable, but the fact remains that the present occurrence had taken place between the parties due to the old land dispute, which was the motive of the present case.
The learned counsel for the appellants contends' that the offence under Section 449 P.P.C. is punishable for a term, which may not exceed ten years, therefore, keeping in view the fact that the legal heirs of the deceased have compounded the main offence of murder, the sentence awarded to the appellants may be reduced to the period already undergone by them, as they both have already served out more then three and five years imprisonment, respectively.
7. The Deputy Prosecutor-General Punjab appearing on behalf of the State and the learned counsel for the complainant have no objection to the prayer made by the learned counsel for the appellants.
8. Object of compromise is to achieve harmony in the society as well as in the families of the complainant and the accused person, which cannot be achieved, if the appellant/accused is kept in jail in a non-compoundable offence. It is settled principle of law that Court can take judicial notice of altered or changed circumstances happened during pendency of the case, hence, Court can take judicial notice of a compromise in non-compoundable offences. Reliance is placed on Mumtaz Ahmad v. The State (1999 P.Crl.L.J. 1107). Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others (P.L.D. 1992 S.C. 723) and Mst. Amina Begum and others v. Mehar Ghulam Dastgir (P.L.D 1978 S.C. 220). Compromise in a non-compoundable offence is recognized ground for reduction in the sentence. Reliance can 'profitably be made to the case of Sultan Mahmood v. The State (1986 P.Crl.L.J. 2410).
9. Although the offence under Section 449 P.P.C. is not compoundable, but keeping in view the compromise arrived at between the parties, I am of the view that when both the parties have themselves voluntarily forgotten and forgiven a, certain crime and have entered into an outside Court settlement and that the complainant party is no longer interested in prosecuting a matter any further, then it is not for the Court to compel the parties to do so.
10. In view of the aforesaid situation, and the law laid down by the Hon'ble Apex Court in the case of Ghulam Ali v. The State and another (1997 S.C.M.R. 1411), I am of the view that since the parties have arrived at a compromise for the main charge and legal heirs of the deceased have forgiven the appellants waiving their right of Qisas and Diyat, reduction in the sentences of the appellants under Section 449/34 P.P.C. to the period already undergone by them would meet the ends of justice. Order accordingly. The sentence of fine imposed under Section 449/34 P.P.C. is also reduced to Rs, 25,000/- from Rs, 50,000/-, however, in case of non-payment thereof, the appellants shall undergo simple imprisonment for one and half month each instead of three months.
11.These appeals stand disposed of in the above terms.