' NISAR MUHAMMAD SHAIKH, J.---This Criminal Revision Application is directed against the order dated 15-3-2010, passed by learned IV-Additional Sessions Judge, Hyderabad, in Sessions Case No,427 of 2008, State v. Javed Nazar, under section 302, P.P.C. (Crime No,252 of 2008 of Police Station Qasimabad), whereby she dismissed the application under section 345(4), Cr.P.C., which was moved for appointment of the grandfather of the minors as their Wali/guardian, in connection with compromise in the above case.
2. The relevant facts, briefly stated, are that the present applicant/accused Javed Nazar, allegedly, committed murder of his wife Mst. Saira as well as his daughter namely Moomal aged about 13/14 years on refusal of his wife to pay him the amount out of her share in the sold out land. This incident look place on 29-7-2008 at 5-00 a.m. And such F.I.R. No,252 of 2008 was lodged by Mst.
Ghazal wife of Altaf, the sister of deceased Mst. Saira, on 30-7-2008 at 1-00 p.m. At Police Station Qasimabad, Hyderabad. The applicant/accused who was arrested on the same day i,e, 30-7-2008 at about 5-00 p.m. When he surrendered himself before police and confessed his guilt stating that he has committed the murder of his wife in ferocity when she did not mend her ways and failed to improve in her bad activities despite his advises. Such confessional statement of the accused was also recorded by Judicial Magistrate on 1-8-2008. On completion of investigation, the accused was A challaned on 13-8-2008 to face trial for the offence punishable under section 302, P.P.C.
3. The deceased Mst. Saira and Moomal, besides the present accused, left behind two minor children namely Nadir Ali (born in 1996) and Osaf Ali (born in 2000). During pendency of the case, Nazar Hussain, the grandfather of these minors and the applicant/accused Javed Nazar, jointly moved three applications relating to the compromise, one under section 345(4), Cr.P.C. For appointment of Nazar Hussain as Wali/guardian of the minors, second under section 345(2), Cr.P.C.
For permission to compromise and third under section 345(6), Cr.P.C. For acquittal of the accused, stating therein that the grandfather of the minors has no adverse interest to these minors and that the legal heirs of the deceased have pardoned the accused in the name of Almighty Allah and have waived their right of Qisas and Diyat claiming no compensation as they have patched up in the matter due to intervention of Nek Mard.
4. After hearing the parties, the learned trial Court dismissed the application under section 345(4), Cr.P.C. For appointment of grandfather of the minors as their Wali/guardian to enter into the compromise with accused, holding that there are other legal heirs of the deceased (i,e, sisters and brothers of the deceased), who have not yet filed any compromise application nor have given their consent for compromise.
5. I have heard the arguments and perused relevant record, which reveals that the Revenue Mukhtiarkar, Qasimabad in his report dated 22-12-2009, had submitted before the trial Court that the deceased Mst. Saira and Moomal left behind the following legal heirs:- Sr.No. Name of Legal HeirsRelationship with deceased Age 1 Javeed son of NazarHusband of deceased Mst.
Saira and father of deceased Mst. Moomal47Years 2 Nadir Ali Son of deceased Mst. Saira and brother of deceased Mst. Moomal11Years 3 Osaf Ali Son of deceased Mst. Saira and brother of deceased Mst. Moomal8Years
6. According to Mr. Amjad Ali Sahito, learned counsel for the applicant, the accused/applicant being a father is a natural and lawful guardian of his minor sons unless he is declared unfit but since he, having been charged for causing death of his wife and minor daughter, has lost his such right in the present case, therefore, such guardianship devolves upon their grandfather who has already been taking care for the welfare of the minors being in his custody since after the alleged incident and as such, this grandfather of the minors was a fit and competent person to be appointed as their guardian to compound the offence with the accused who was also not liable to Qisas. He further contended that the sisters and brothers of deceased mother of the minors could not be treated in any way. As legal heirs of the deceased. Hence the impugned order cannot sustain in law. On the other hand, the contention of Mr. Nisar Ahmed Durrani, learned counsel for the complainant, is that the so-called compromise between the accused and his father is not genuine one and that the father of accused cannot be appointed as guardian of the minor sons of deceased Mst. Saira whose parents have expired but her brothers and sisters including the complainant are alive and contesting this case and even otherwise. The accused is since charged for committing Qatl-e-amd therefore, the right of Qisas vesting in the minor sons of deceased, who are governed by Shia Law, cannot be waived under section 309(1)(b), P.P.C. Even by the guardian of the minors whose right and interest is bound to be safeguarded and protected under the provisions of Qisas and Diyat Ordinance.
7. Whereas, Mr. Hidayatullah Abbasi, learned Senior Advocate, who was appointed as Amicus Curaie to assist this Court as to whether the application under section 345(4), Cr.P.C. Moved by the paternal grandfather of the children for his appointment as "Wali" can be considered for compounding the offence, answered in the affirmative submitting that the minor Walis/legal heirs of the deceased who cannot waive their right of Qisas, would be entitled to their share of Diyat under the proviso to subsection (2) of section 309, P.P.C. And a guardian/wali of the minors could also compound the right of Qisas on behalf of the minors on accepting the Badal-i-Sulh under subsections (1) and (2) of section 310, P.P.C., and otherwise, the paternal grandfather of the minors shall have the right of Qisas under section 313(1)(b), P.P.C. On behalf of the minors in absence of their father. However, according to him, the above provisions cannot be pressed into service in the present case in which the murder/qatl-e-amd in question is not liable to Qisas in view of the bar contained in section 306(b) and (c), P.P.C., as the accused is alleged to have caused the death of his minor daughter namely Moomal arid that the minor sons of deceased Mst. Saira are the direct descendants 'of the accused, and accordingly, the present case is punishable by way of "Tazir', and the same is compoundable under section 345(2), Cr.P.C. He also referred to the relevant provisions of MULLA'S MUHAMMADAN LAW and submitted that in absence of the father, the grandfather of the minors would be the legal guardian of the property of minors as per section 359 and it is only after the default of such legal guardian, the Court would appoint a guardian under section 360 for the protection of minors' property and likewise, in the present case, the grandfather would be competent to act as guardian of the minors who, being Walis/legal heirs of, the deceased, were entitled to inherit the property of the deceased.
8. I have considered the above submissions. Though in the matter of like nature, the State or the complainant and the accused are the parties to the case but, for the purpose of compromise, only the accused and the legal heirs of the deceased are the parties to such proceedings and it is not the requirement of law that the guardian of the minor should also be a legal heir of the deceased.
Such guardian may be a relative or friend of the minors but he should be a competent person having no interest adverse to the minors so that he may safeguard/protect the interest of the minors. However, in the impugned order, the sisters and brothers of the deceased are not only made as a necessary party to compromise applications/proceedings but they have also been treated to be legal heirs of the deceased. The last and relevant portion of such B order is as under:-- "The above named legal heirs have not filed compromise application or any affidavit and given consent for compromise.
' In the light of above, when there are other legal heirs of the deceased who have not yet filed any compromise application and given consent, the application in hand merits no consideration, which hereby dismissed."
9. It appears from the impugned order that the complainant Mst.. Ghazal, together with her sisters and brothers, has resisted the compromise in question claiming to be the legal heirs of their deceased sister Mst. Saira, who admittedly survived by her minor sons and their father, the accused. On a similar point, dealt with by a Single Bench of Lahore High Court, in a case of GHULAM SHABB1R v. THE STATE and 6 others (1997 MLD 1329), the Court held as under:-- "I have considered the submissions made at the Bar from both sides. It is clear that right to compound is given to the legal heirs of deceased person . Under the existing law. The complainant though a brother of the deceased is not a legal heir as the deceased had left behind his children and as such his brothers are excluded from inheritance. On that ground the complainant cannot resist the compromise if that is to be entered into genuinely by the legal heirs of the deceased."
10. In another case of NIAZ MUHAMMAD v. THE STATE (PLD 1997 Quetta 17) it was held by a Division Bench that when the father of deceased alone was competent to compound the offence, the direction for procuring confirmation from sisters and brothers of deceased, issued by trial Court through impugned order, was totally devoid of lawful authority. This view was also approved by honourable Supreme Court of Pakistan in a case of SARTAJ and others. v. MUSHTAQ AHMED and others (2006 SCM R 1916), holding that the brothers and sisters of the deceased are not the legal heirs of the deceased and there is no difference of opinion in the Sunni and Shia schools of thought as far as the exclusion of brothers and sisters of deceased by the father is concerned. Similarly in the case in hand, the sisters and brothers of the deceased are excluded by the sons of the deceased. Whereas, in the case of FAZAL HUSSAIN v. THE STATE (2002 PCr.LJ 1216), the grand parents of four minor children of the accused and the deceased who were husband and wife, were allowed to enter into compromise on behalf of the minors as their guardian and such compromise was accepted by the Court.
11. In view of above, the impugned order dated 15-3-2010, passed by the trial Court dismissing application under section 345(4), Cr.P.C. For appointment of the grandfather of the minors as their guardian/Wali and treating the complainant and her sisters and brothers as legal heirs of the deceased persons, is hereby set aside being not sustainable in law. Consequently, the application under section 345(4), Cr.P.C. Is allowed with direction to the learned trial Court to decide the pending applications under section 345(2) and (6), Cr.P.C. In accordance with law, keeping in view the newly-added subsection (2-A) of section 345, Cr.P.C. Needless to say that all relevant questions relating to the compromise shall be determined by learned trial Court in accordance with law without being influenced of the observations, if any, made in this order.
12. This Criminal Revision stands allowed accordingly. While parting, I would like to record my gratitude for valuable assistance rendered by Mr. Hidayatullah Abbasi, Senior Advocate.
Revision .