' On account of the commission of murder of Abid Hussain son of Gulzar Ahmed and Mst.Hafeezan Bibi daughter of Abdul Latif a criminal case vide F.I.R. No,216 of 1996 dated 19-10-1996 was registered under section 302, P.P.C. At Police Station Fazil Pur, District Rajanpur, against the petitioner and Ghulam Rasool the co-accused. Vide judgment dated 27-7-1999, Ghularn Rasool was acquitted of the charge. The petitioner was held guilty for the commission of Qatl-e-amd of Mst.Hafeezan Bibi and Abid Hussain out of "ghayrat" under the impulse and sudden grave provocation. He was convicted under section 302, P.P.C. And was sentenced to undergo R.I. For a term of seven years on each count. The sentences were ordered to run concurrently. The accused was also entitled to the benefit of section 382-B, Cr.P.C. Hussain, respondent No,2 filed Criminal Revision No,197 of 1999 seeking the enhancement of the sentence. The learned Division Bench of this Court vide judgment dated 26-9-2001 accepted the revision petition. Resultantly, the petitioner was convicted under section 302(b), P.P.C. And was sentenced to death as Tazir on two counts and was made to pay compensation of Rs:1,00,000 (one lac) on each count. The petitioner having already undergone the sentence of seven years had been released. He surrendered himself on 13-7-2010 and was sent to jail to serve out the sentence passed against him. A compromise was effected between the Wallis of both, the deceased and the petitioner. He moved an application under section 345(2), Cr.P.C.
Before the learned trial Court.. Legal heirs/Wallis of both the deceased were summoned and their statements were recorded. They stated that they have forgiven the petitioner and had waived their right of Qisas and Diyat. The affidavits sworn in by them were placed on the record. The learned Sessions Judge, Rajanpur did not grant the permission to compound the offence. The application was dismissed vide order dated 12-11-2010. The learned Court was of the view that the petitioner had committed Qatl-e-amd of Abid Hussain and Mst.Hafeezan Bibi out of "ghayrat". In revision petition filed by the respondent No,2, the honourable High Court had held that murders in the name of family honour and religious could not be sanctified, therefore, in cases where the Qatl-e-amd had been committed on the pretext of "Karo Kari", "Sayah Kari" and similar other customs, the provisions of section 342(2), Cr.P.C. Did not allow the compounding of the offence.
2. It is contended by the learned counsel for the petitioner that the impugned order is violative of law; that the learned Sessions Judge has misconceived the law as laid down in section 345(2), Cr.P.C. And section 338-E(1), P.P.C. Both the Sections are reproduced as under: -- 338-E. Waiver or compounding of offences.---(1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provision's of sections 309 and 310 shall mutatis mutandis, apply to the waiver or compounding of such offences: ' Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award tazir to the offender according to the nature of the offence: ' Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.
345. Compounding Offences.---(1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table.
[(2) The offense punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in third Column of that table.
[(2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case].
3. The second proviso to section 338-E(1), of P.P.C. And (2-A) of section 345, Cr.P.C. Have been inserted by Criminal Law Amendment Act, 2004 (Act I of 2005). Both these provisions are identical.
Before the insertion of these amendment, all the offences under Chapter XVI of P.P.C. Might be waived or compounded. Similarly in the section 345(1), Cr.P.C, the offences specified therein could be compounded by the persons mentioned therein. Under subsection (2) of the same section, the offences could be compounded by the permission of the Court. The amendment inserted in both the sections through Criminal Law Amendment Act, 2004 made it obligatory that the offence committed in the name or on the pretext of "Karo Karl", "Sayah Kari" and similar other customs or practices may be waived or compounded subject to such conditions as the Court deem fit to impose with the consent of the parties having regard to die facts and circumstances of the case.
The Amendment Act, did not take the offences committed in the -name or pretext mentioned therein out of the circumference of waiver or composition but there have to be some conditions imposed for waiver and composition. The condition should be such as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.
The Court does not have an option to impose or not to impose the conditions. The imposition of the conditions is mandatory. It is mildness or severity of the conditions that has to be determined with the consent of the parties having regard to the facts and circumstances of the case.
4. The above discussion brings us to the, conclusion that the offences falling under Chapter XVI of P.P.C. And mentioned in the schedule under section 345 Cr.P.C. Even if committed in the name of "ghayrat" "Karo Kari", "Sayah Kari" and similar other customs, are compoundable and may be waived. We are of the opinion that the orders passed by the learned Sessions Judge refusing the composition or waiver of the offence is illegal and violative of law. It is set aside. This criminal revision is accepted. The case is remanded to the learned Sessions Judge Rajanpur. He shall pass an order regarding the composition or waiver of offence, after imposition of the conditions with the consent of the parties keeping in view the above observations made by us and after giving due consideration to the provisions of sections 338-E, 309, 310 and 311 of P.P.C. And section 345(2) of Cr.P.C.