1. MRS. SYEDA TAHIRA SAFDAR, J.---The appellant Abdullah through instant appeal challenged judgment dated 3-6-2009 of Additional Sessions Judge-IV, Quetta, whereby he has been convicted for the offence of Qatl Shibhi-Amd as defined under section 316, P.P.C., while awarded punishment to suffer rigorous imprisonment for a period of ten years, and to pay an amount of Rs,12,00,000 as Diyat to the legal heirs of deceased Naimatullah. The appellant was initially In charged for the offence under section 302, P.P.C., but on conclusion of trial, the learned trial Judge, reached to the conclusion, that the offence made out against the appellant is of Qatl Shibhi-Amd, as defined in section 316, P.P.C. thus awarded him sentence for the offence as mentioned hereinabove.
2. During pendency of appeal, an application was moved by the appellant with contention, that the parties have arrived to a compromise out side the court, which is requested to be accepted, and appellant be acquitted of the charge., The papers of compromise along with application were submitted by legal heirs of deceased Naimatullah. In order to verify the fact of effecting of compromise between the parties, the relevant papers were sent to trial judge i,e, Additional Sessions Judge-IV, Quetta, who submitted his report dated 15-2-2011, confirming effecting of compromise between the parties. The legal heirs of the deceased, his father namely Wali Jan, mother namely Mst. Sakina and brother Daru Khan, while appearing before the trial Court confirmed execution of Compromise Deed with appellant Abdullah, thereby affirmed the fact of granting pardon to the appellant in name of Almighty Allah, by waiving their right of Qisas and Diyat. The statements of legal heirs were also recorded by the trial Court on oath, whereby they have confirmed the contents of Compromise Deed, further affirmed that they have pardoned the appellant, and also forgone the Diyat amount. It is to be noted that Additional Sessions Judge-IV, Quetta, though have verified effecting of compromise between the parties, but he did not make efforts for verification of the list of legal heirs attached to the papers of compromise, which shows negligence on part of the trial Court. But as admittedly father and mother of the deceased are alive, and also appeared before the court, in their presence as per their personal law no one else can be included in purview of "WALI" of the deceased as defined in section 299(m), P.P.C., read with section 305, P.P.C.
3. Though the matter has been compromised between the parties, and legal heirs of deceased have forgiven the appellant/convict, and also forgone their right of Diyat, but it must be clear to the all concerned that ultimate result of compromise, arrived between the parties, is not automatic acquittal of the accused person/convict, father before making any order, the court, before which such compromise leas been submitted, is duty bound to look into the matter in depth, thereby affirmed the fact of effecting of compromise between the parties, and in addition keeping in view the nature of the offence alleged or proved against the accused person/convict, and also other 'circumstances of the case, thereafter, arrived to the conclusion either accepting the compromise or otherwise, specifically having in sight the relevant provisions of law i,e, provisions of sections 309 and 310 along with section 338-E, P.P.C. and also the provisions of section 345, Cr.P.C. It is specifically provided in first proviso of section 338-E, P.P.C. that:-- Section 338-E.--- 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."
4. While subsection (2) of section 345, Cr.P.C. also empowers the court to the effect that the offences mentioned therein be compounded, only with permission of the court. Thus keeping in view the above mentioned provision of the compromise, in all cases, does not result into acquittal of accused person rather lie can be punished for a term as tazir as provided therein. The power vests in the court which is to be exercised judiciously.
5. In present case, the offence made out against the appellant is of Qatl Shibla-i-amd, while he has been awarded sentence of imprisonment' for a period of ten years, with payment of Diyat amount of Rs,12,00,000. Keeping in view the material present on record, the appellant being man A of young age and closely related to the victim, and the circumstances in which the act has been committed, which shows sudden happening of the act, without , premeditation. Further, parents of the deceased Naimatullah have not only forgiven the appellant, but also waived their right of Diyat.
6. Furthermore, there is nothing on record, which showed the criminal conduct of the appellant, or he being previously involved or convicted in any other offence. Thus in the circumstances, as legal heirs of deceased Naimatullah have pardoned the appellant, and there are no grounds, which can justify punishing him in Tazir. Further, he has already suffered for the act, which he has committed.
7. There is also no objection on effecting of compromise, or acceptance thereof, from the side of the State.
8. Keeping in view the above mentioned facts and discussion made thereon, the compromise submitted by the parties is hereby accepted. The judgment dated 3-6-2009 of Additional Sessions Judge-IV, Quetta, whereby the appellant has been convicted for the offence, is hereby set aside.
9. Therefore, appellant Abdullah son of Abdul Ghafoor is acquitted of the charge, pertaining to F.I.R.
10. No,113 of 2008, Police Station Kuchlak, District Quetta. He be released at once, if not required in any other case.