SHAHID HAMEED DAR, J.----Through this single judgment we intend to dispose of Criminal Appeal No, 1792 of 2002 filed by Muhammad Shafi and Amjad Mehmood appellants-accused and Criminal Appeal No, 1991 of 2002 filed by Muhammad Asif, complainant against acquittal of Saqib Sultan, respondent No,1.
Three accused including the appellants-accused were tried by learned Addl: Sessions Judge, Mandi Bahauddin, in case F.I.R. No, 255 of 2001 dated 23-7-2001 under sections 302, 34 P.P.C. Police Station, Phalia, District Mandi Bahauddin who vide his judgment dated 30-9-2002 convicted and sentenced the appellants-accused, by holding them guilty, as under:- Under Section 308 read with section 311/34, P.P.C.
Diyat Rs,10,00,000 along with 14 years' R.I. as Ta'zir. All the legal heirs of the deceased, except his real sister Mst. Fahmida Yasmeen, had waived their right of Qisas and Diyat, during the course of the trial, so, the learned trial Court while awarding sentence of payment of Diyat to the appellants, observed that Mst. Fahmida would be entitled to 1/2 (halt) share of Diyat i.e Rs,5,00,000.
Under Section 449 P.P.C.
Imprisonment for life each; with fine of Rs,1,00,000 each, in default thereof to further undergo one year's S.I.
The appellants-accused wee extended benefit of section 382-B, Cr.P.C. with the order that all the aforementioned sentences shall run concurrently.
2. Brief facts, according to complaint Exh.PA, (F.I.R. Exh.PA/1) as stated by Muhammad Asif complainant P.W.1 are that Muhammad Shafi appellant-accused was real father of Mudassar Hussain (deceased) who, had two wives and offspring from both of them; Mudassar Hussain (deceased) and Fahmida Yasmeen were born from one wife while Amjad appellant-accused and Saqib (since acquitted) and their two sisters were from the other wife; Muhammad Shafi appellant-accused used to reside at Samanabad, Lahore, who was a well off person and had agricultural land as well as other immovable property, including a house (bungalow) situated in village Dhrakan Kalan, Police Station Phalia, District Mandi Bahauddin; he was reluctant to confer the share of his property upon his elder son Mudassar Hussain (deceased) so,. he (deceased) took over the possession of the said bungalow (Kothi); Muhammad Shafi, Amjad, appellants, and Saqib (since acquitted) being armed with sticks/Sotas reached the disputed Kothi at Degarwaila on 23- 7-2001; on the Lalkara of Saqib (since acquitted) Amjad appellant-accused inflicted a sota blow on the right side of the head of Mudassar (deceased), followed by a sota blow on the left side of the head of Mudassar (deceased) by Muhammad. Shafi, appellant; Muhammad Asif complainant, P.W.1, Zafar Mehmood, P.W.2 and Khalid Mehmood (given up P.W.) attempted to rescue the deceased, whereupon, Saqib (since acquitted) threatened that they would be killed if they drew near; Amjad appellant gave another Sota blow on the right cheek of deflated Mudassar (deceased); on the hue and cry of the complainant and his companions, Muhammad Shafi etc. fled away in their vehicle. The occurrence was witnessed by the above said witnesses; the motive behind the occurrence was a dispute of property between the accused and Mudassar (deceased) due to which Muhammad Shafi etc. wounded Mudassar who was brought to Civil Hospital, Phalia by the complainant and his - above named companions for treatment. The complainant got recorded his statement, Exli.PA by Talib Hussain A..S.-I, Police Station Phalia at Civil Hospital, Phalia, at 7.30 p.m on 23-7-2001.
3. Mudassar Hussain, succumbed to the injuries on 23-7-2001 at THQ, Hospital, Phalia, District Mandi Bahauddin, so, section 302, ,P.P.C. was added to this case by the I.O.
4. After usual investigation a report under section 173, Cr.P.C. was submitted in the learned trial Court. The appellants and his co-accused were delivered copies of the prosecution evidence under section 265-C, Cr. P . Thereafter; they were charge-sheeted to which they did not plead guilty and claimed a trial.
5. The prosecution successfully proved the charge against the appellants, during the course of the trial, as a result of which, the appellants were awarded the aforementioned sentence, whereas, their co-accused Saqib was acquitted of the charge.
6. During the pendency of the trial, one Arshad Iqbal, relative of the deceased moved an application on 4-7-2002 before the learned trial Court for recording the statements of the legal heirs of the deceased qua waiver of their right of Qisas and seeking permission to deposit the amount of Diyat to the , extent of Mst. Fahmida Yasmeen as she was not ready to compound the matter with the accused- appellants. The learned trial Court recorded the statements of Arshad Iqbal, a utrine brother of Muhammad Shati appellant-accused and real paternal uncle of the deceased, Mst. Fatima Bibi, the mother of the appellant Muhammad Shafi accused and real paternal grandmother of the deceased, Hamara Sajjad and Adeela Majeed, real sisters of Amjad Mehmood, appellant-accused and Saqib Sultan (since acquitted) besides being the step sisters of the deceased, on 26-9-2002.
7. As Mudassar Husain deceased was the real son of Muhammad Shafi, appellant- accused, whose mother Mst. Rasulan Bibi had already died, leaving behind one son (Mudassar Hussain deceased) and one daughter (Mst. Fahmida Bibi), so, the above said legal heirs of the deceased had appeared before the learned trial Court on 26-9-2002 to record their statements qua waiver of their right of Qisas with the contention that the appellants-accused may be acquitted of the charge.
8. During the course of his statement Muhammad Asif, complainant, P.W.1, has deposed about the fact that Mst. Rasulan Bibi, the real mother of Mudassar Hussain deceased, was his maternal aunt as well as, the first wife of Muhammad Shati, appellant-accused, who had died about 8/9 years earlier and she had left behind one son Mudassar Hussain (deceased) and a daughter Mst.
Fahmida Yasmeen. He further deposed that Muhammad Shafi accused-appellant had solemnized his second marriage with Mst. Aimna Bibi who gave birth to two sons Saqib (since acquitted) and Amjad, the appellant accused and two daughters namely Hamara and Adeela. He further deposed that the grandmother of the deceased Mst. Fatima Bibi was still alive and that Arshad Iqbal was the son of said Mst. Fatima Bibi but he was from her later husband Ghulam Hussain. He maintained in his statement that the name of father of Muhammad Shafi accused-appellant was Sultan Ahmad who had married Mst. Fatima but after his death she contracted marriage with Ghulam Hussain.
Zafar Mehmood P.W.2, the husband of Mst. Fahmida Yasmeen, deposed in his testimony that Mst.
Rasulan Bibi was his mother-in-law who was the wife of Muhammad Shafi, the accused-appellant and that she had died about 4/5 years back. The learned trial Court has referred to a pedigree (page No,16 of the impugned judgment) of the deceased by holding that following were the legal heirs of the deceased as he was unmarried at the time of his death:--
(i) Mst. Fahmida Yasmeen, real sister of the deceased (who had not waived her right of Qisas).
(ii) Mst. Fatima Bibi, real paternal grandmother of the deceased (who had waived her right of Qisas).
(iii) Mst. Hamra Sajjad, consanguine sister of the deceased (who had waived her right of Qisas).
(iv) Mst. Adeela Majid, consanguine sister of the deceased (who had waived her right of Qisas).
(v) Arshad Iqbal utrine uncle of the deceased (who had waived his right of Qisas).
9. The learned trial Court did not approve the compromise between the parties as Mst. Fahmida Yasmeen had refused to make a statement of waiver of her right of Qisas in favour of the accused, during the course of the trial. The complainant too had vociferously opposed the acceptance of compromise at the trial stage with the contention that the real sister of the deceased Mst. Fahmida Yasmeen was the actual affected person of the murder of her real brother and that she had not waived her right of Qisas. It is why the learned trial Court while concluding the subject observed in the impugned judgment that Mst, Fahmida Yasmeen would be entitled to 1/2 share of Diyat, which had been fixed by the trial Court as Rs,10,00,000 under section 323, P.P.C.
10. When the instant appeals were taken up for hearing on 14-7-2010, a sense of sanity prevailed between the parties, a short dialogue was held between them and they decided that Mst. Fahmida Yasmeen too, would waive her right of Qisas by accepting the above said share of Diyat. So she has appeared before this court today and has submitted a Compromise Deed Mark-A, duly signed by her as well as by the learned counsel for both the sides and by Saqib Sultan (since acquitted).
According to the terms and conditions of the compromise, the accused shall pay a sum of Rs,2,00,000 to Mst. Fahmida Yasmeen at 2:00 p.m on 19-7-2010, in the office of learned counsel for the appellants Munir Ahmad Bhatti, advocate and rest of the Diyat amount Rs,3,00,000 shall be paid by the accused in three monthly instalments by 19-10-2010, at the rate of Rs,1,00,000 per month through cheques which shall be handed over to the learned counsel for the complainant Muhammad Inayat Cheema, advocate, at noon time on 19-7-2010. It has been further settled between the parties that in case of default on the part of the accused, Mst. Fahmida Yasmeen reserved her right to take to the legal recourse against the accused-appellants. Mst. Fahmida Yasmeen has also verbally shown her satisfaction about the settlement/ compromise deed dated 16-7-2010 and has reiterated her version that she had compounded the matter with the appellants-accused as well as with Saqib Sultan (since acquitted) of her free will and accord and that she had no objection if the accused-appellants were acquitted of the charge by acceptance of their appeal.
11. Learned counsel for the appellants contends that all the legal heirs of the deceased but Mst.
Fehmida Bibi (real sister of the deceased) had appeared before the learned trial Court during trial and had waived their right of Qisas and they showed no objection to the acquittal of the accused but the compromise could not be approved of by the learned trial Court as one of the legal heirs, Mst. Fahmida Yasmeen was not willing to join rest of the legal heirs for the purpose of compromise; the learned trial Judge, however, fixed the share of amount of Diyat for Mst. Fahmida Yasmeen as 1/2 of the total Diyat amount i,e, Rs,10,00,000; Mst. Fahmida Yasmeen has appeared before the court to state that she too has pardoned the appellants-accused and that she had no objection to their acquittal in this case for, she had compounded the matter; she has also signed a compromise deed in this regard which has been duly authenticated not only by the either side but also by the learned counsel for both the parties; the efforts for compromise between the parties, which had taken a start in the court of learned trial judge, have materialized into a complete rapprochement, after Mst. Fahmida Yasmeen has also consented to enter into compromise with the appellants- accused and their co-accused Saqib (since acquitted) and has put her signatures on the compromise deed; the appellants-accused on the basis of compromise may be acquitted of all the charges; the compromise is a redeeming feature which brings harmony, coherence and peace in the society which should be encouraged; that the statute had made the offence of culpable homicide compoundable and the appellants-accused merited acquittal as the compromise arrived at between the parties was genuine and had been finalized without any pressure or coercion; that the deceased was real son of Muhammad Shafi appellant and step brother of Amjad Mahmood appellant-accused, hence, the legal heirs of the deceased with a view to turn the hostility - into peace and revive the relationship between the parties, had struck compromise, which, should be accepted and the benefit whereof should be extended to the appellants; though section 449, P.P.C. was not compoundable still, the benefit of compromise may be extended to the appellants for the said offence as well so that the parties may harvest the complete premium of their change of heart; even otherwise, the conviction of the appellant-accused is not sustainable under the law for an offence under section 449, P.P.C. as the appellants could not be described as trespassers in the house of their son or brother; the instant appeal may be accepted and the appellants may be acquitted of the charge.
12. Learned Additional Prosecutor-General does not controvert the submissions made by the learned counsel for the appellant and adds that the statute had made, the offence under section 302, P.P.C., compoundable with the consent of the court and if the parties had decided to live in peace in future, he does not intend to defy it but the conviction/sentence of the appellants under section 449, P.P.C. cannot be set aside as the said offence is non-compoundable; the prosecution has proved the charge against the appellants through cogent and trustworthy evidence so the benefit of the compromise could only be extended to the offence of 302, P.P.C. read with section 311/34, P.P.C.
13. We have heard learned counsel for the parties and have also gone through the F.I.R., statements of the legal heirs of the deceased and that of the P.Ws. along with the statements of the accused under section 342 Cr.P.C. very minutely and carefully.
14. The deceased Mudassar Hussain was the real son of Muhammad Shafi appellant and step brother of Amjad Mehmood appellant who is also the son of Muhammad Shafi appellant. During the course of the trial the statements of legal heirs of the deceased namely Mst. Fatima Bibi, the paternal grandmother of the deceased, Mst. Hamara Sajjad and Mst. Adeela Majeed, consanguine sisters of the deceased along with Arshad Iqbal utrine paternal uncle of the deceased were recorded by the trial Court wherein they had waived their right of Qisas and deposed that they had no objection if the appellants-accused were acquitted of the charge. Mst. Fahmida Yasmeen, the real sister of the deceased and one of the legal heirs, however, did not join the band of other legal heirs' to compound the offence with the accused so the learned trial Court did not approve of the compromise between the parties and convicted/sentenced the appellants-accused in the aforementioned terms by fixing the share of Diyat (Rs,5,00,000) of Mst. Fahmida Yasmeen who during pendency of the instant appeal, has stated 'to have compounded the matter with the appellants/accused and that she would not object to their acquittal on the basis of compromise which has been conditioned with certain terms that shall be -fulfilled by the accused according to the schedule given in the compromise deed Mark-A, duly signed not only by Mst. Fahmida Yasmeen and Saqib (acquitted co-accused) but also by the learned counsel for both the sides as a token of genuineness and authenticity 'of the completion of compromise.
15. The offences under section 308, P.P.C. read with section 311/34, P.P.C. have been made compoundable with the consent of the court. If the parties had buried their hatchet and they had decided to live in peace in future and that through this act of compromise, wanted to bring back peace, harmony and revival of relationship in the family, it is a good omen, which should be encouraged. So, I nod in positive to the above said compromise and acquit the appellants- accused for offences under sections 308, 311/34, P.P.C. It is also worth-mentioning that the appellants-accused had been arrested in this case on 24-8-2001 and they by now must have undergone their sentence of imprisonment, they were awarded by the learned trial Court under section 308, P,P.C. read with section 311/34, P.P,C.
16. So far as, the conviction and sentence of the appellants- accused under section 449, P.P.C. is concerned I find that the place of occurrence, as per statement of Muhammad Asif P.W.1 and Zafar Mehmood P.W.2, was the bungalow (Kothi) owned by Muhammad Shafi appellant-accused wherein his real son Mudassar Hussain (deceased) was living for a number of years, allegedly against the wishes and consent of his father, as according to the prosecution case, Muhammad Shafi appellant-accused had not given him the share of his urban property. Can a father be considered a trespasser in the house of his real son or .a person can, be deemed as such in the house of his step brother (who is the son of the same father like him) is a question to be looked at and dealt with legal acumen-ship. The place of occurrence in this case was a house exclusively owned by Muhammad Shafi, the appellant-accused while his co-assailant Amjad Mehmood is his real son. Regardless of the allegations against them, it cannot be held that they being the relatives of the deceased, to such a close degree, would be deemed to have committed the offence of trespass within the scope of section 449, P.P.C. The instant proposition has not been dealt with lawfully by the learned trial Court and have recorded the conviction and sentence against the appellants-accused in a manner, unwarranted by law. I advantageously rely upon Muhammad Asif v. The State (1999 YLR 1576) wherein it has been held as under:-- "Sentence under section 449, P.P.C. is set aside because it was the house of the sister of the appellant, so, in our view appellant had not criminally trespassed into the said house."
17. In the above referred to judgment, passed by this court, the facts of the case were that the appellant Muhammad Asif being armed with a knife had entered the house of his sister at 2-00 a.m. and committed the murder of his brother Asif Mehmood. With the above said observation, the conviction and sentence of the appellant under section 449, P.P.C. was set aside.
18. Therefore, I hold that the appellants-accused had not committed any offence under section 449, P.P.C. by entering the residential house of the deceased/place of occurrence, exclusively owned by Muhammad Shafi, appellant-accused, the father of the deceased and that of his co- appellant, so their conviction and sentence for the said offence is not maintainable, which is set aside.
19. The upshot of the above discussion is that the instant appeal bearing No, 1792 of 2002 filed by the appellants-accused is accepted, their conviction/sentence under D section 449, P.P.C. is also set aside and they are acquitted of the charge. They shall be released forthwith, if not required in any other criminal case.
20. The Criminal Appeal No, 1991 of 2002 tiled by Muhammad Asif, complainant against acquittal of Saqib Sultan, respondent No,1, for the foregoing reasons is dismissed.