Shahzado Shaikh, J.--This Cr. Misc. A. No, 79/I of 2011, filed by convicts Muhammad Afzal and Mst.
Bushra Bibi for effecting compromise between the petitioners and the legal heirs of deceased Mst.
Asma Bibi. Before filing of this Cr. Misc. Application they have filed Criminal Appeal No, 60/L of 2009 (Muhammad Afzal) L/W Jail Criminal Appeal No, 84/I of 2009 (Mst. Bushra Bibi) against the judgment dated 25.04.2009 delivered by learned Additional Sessions Judge, Samundri, Faisalabad whereby the accused were convicted and sentenced as follows:-- {{TABLE}} Under Section 302 (b) r/w Section 34 of the Pakistan Penal Cod25 years rigorous imprisonment Under Section 201 r/w Section 34 of the Pakistan Penal Code05 years rigorous imprisonment with fine of Rs: 50,000/- as compensation.
Under Section 544-A Cr: Procedure Code.06 months S.I. {{TABLE}} All the sentences shall run concurrently with benefit of Section 382-B, Cr.P.C.
2. Crime was committed on 28.01.2006 as reported by complainant Ghulam Sarwae, PW-5, father of the deceased that the above mentioned petitioners had murdered his daughter Mst. Asma Bibi; aged about 14/15 years, in furtherance of their common intention, set her on fire after sprinkling kerosene oil in order to destroy the evidence with the intention of screening themselves from the legal consequences of the act of zina committed with her by Muhammad Afzal petitioner/appellant.
3. During pendency of these appeals, legal heir of the deceased namely Ghulam Sarwar, who is father of the deceased entered into compromise and waived his right of Qisas and Diyat.
4. Learned trial Court recorded the statements of the complainant/legal heir of the deceased on 12.11.2011 and verified the factum of compromise vide its order dated 12.11.2011.
5. Learned counsel for the petitioners argued that the sole legal heir of the deceased has forgiven the petitioners and valid compromise in this regard has been entered into between the parties; therefore the matter be disposed off in light of said compromise. But on the other side Mr. Ahmed Raza Gilani, Addl: Prosecutor General Punjab seriously objected to the acceptance of compromise and vehemently opposed this compromise petition. He placed reliance upon the case of Naeem Akhtar and other Vs. The State reported in PLD 1910 SC 939, which is reproduced below:-- "As per the Black's Law Dictionary (Fifth Edition 801), the noted expression is defined to mean "permission obtained from a Court to take some action which, without such permission, would not be allowable." Thus, the object requiring leave from the Court as per the clear intention of the legislature is neither meaningless not purposeless and it cannot be construed that while considering the compromise plea, even of a compromise which is lawfully entered, by free consent of the legal heirs, the Court, should act in a mechanical manner and allow the same as a matter of course or routine; should sit as a silent spectator or to conduct as a post office simpliciter and affix a judicial stamp upon it. Rather it is the duly and the prerogative of the Court to determine the fitness of the case for the endorsement and sanction of the compromise and in appropriate cases, where the compromiser and offender is directly or indirectly beneficiary of the crime; the offence is committed or is caused thereof, for an obvious object of grabbing the property of the deceased by the compromiser, through his off spring, who may ultimately benefits himself (the offender) as well, the Court may refuse to give an effect to such a deal, especially coupled with the scenario when the offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation in the society. The case in hand is the one in which the entire family has been killed while asleep, for no apparent cause but to avenge the refusal of marriage and grapple the property. And in my candid view, the instant case falls within the above category, therefore, the leave for the compromise is refused and the application is hereby dismissed".
6. He also relied upon Section 311, PPC. For convenience Section 311, PPC is reproduced as under:--
311. Ta'zk after waiver or compounding of right of Qisas in Qatl-Amd.--Notwithstanding anything contained in Section 309 or Section 310 where all the Wali do not waive or compound the right of Qisas or keeping in view the principle of Fasad-dilArz the Court may in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which extended to fourteen years as Tazir."
7. We examined this section in the light of Section 345 (2) and (7) of the, Cr.P.C. which are reproduced as under:-- "345 (2). The offences punishable under the section 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 the third column of that table 345(7). No offence shall be compounded except as provided by thiS section."
8. In this connection, following may also be considered: Compromise in non-compoundable cases is penalty against law. Acceptance of compensation does not cure illegality. Appeal ordered to be disposed of on merits. [1976 PCr.LJ 94].
Application for compromise is an admission of guilt. [PLD 2002 Lah. 444 (DB)] "Despite compromise Sections 309, 310, 311, PPC Court has discretion to punish the accused notwithstanding compounding of Tazir and waiver of Qisas. Court has discretion to punish the accused if he is a previous convict, habitual or professional criminal or had brutally committed the offence. [PLD 1997 Quetta 17]."
Court, in the matter of interpretation and application of provisions of Chap. XVI, P.P.C. in respect of the offences mentioned therein or the matters ancillary or akin thereto., can seek guidance from the Holy Qur'an and Sunnah as provided in Section 338-F, P.P.C. but it cannot bring a non- compoundable offence within the purview of Section 345 Cr.P.C. by virtue of Section 338-F, P.P.C. for the purpose of compounding it on the basis of compromise. { PLD 2006 SC 53}.
The above two last citations may be examined particularly in the perspective of the Hadith {{URDU TEXT}} where even punishment by fire to the offender has absolutely been prohibited, as the Act of Allah only; what to even think of putting a victim to fire.
9. We have also examined the statement of the Lady Dr. Samyya Liaqat, who examined the deceased, and reported that 06 injuries on the forehead/head were sustained by the deceased.
She also reported that Mst. Asma Bibi deceased was subjected to sexual intercourse prior to her death and whole body was burnt except back of chest and buttock. In case of Hadd offence of Zina, no compromise can be accepted. In light of above extremely brutal nature of the offence committed, and the abhorable manner in which it was committed, it is a fit case where expression of Fasad fil Arz would also be applicable having regard to the facts and circumstances of the case.
As reported by lady doctor a brutal murder has been committed by the petitioners, which directly involves and affects the society. In such situation the Court/State would be fully competent to award punishment as may be deemed fit and proper under the law, notwithstanding pardon by the legal heirs of the deceased.
10.Extreme brutality is evident from the MLR, and death report which show brutal beating to death and burning of the victim.
11.This Cr. Misc: Application/petition has been examined carefully, and we feel that it is not a fit case for acceptance of compromise because in this case not only public rights are violated but conscience of whole society has been shaken. It is also a settled principle of law that when legal heirs forgive any offender, it could only be effective to the extent of their personal rights and as far as personal grievances are concerned. Such forgiveness will not be effective if the matter relates to rights of public. In this regard view of Abdul Qadar Ouda in A1-Tashri-ul-Janaiul Islami, vol. I, page 777), reproduced as under, may also be relevant to examine:-- "The victim has the right to forgive Ta'zir crimes but only to the limit to which his personal grievance is concerned like beating, abusing etc. But this forgiveness will not be effective in the matters of the public rights specially, the reforming of the accused. When a victim forgave any accused, it will only be effective to the extent of his personal rights.) (PLD 1996 Quetta 56)
12.In view of above discussion we dismissed this Cr. Misc: Application.
13.These are the reasons for ourshort order dated 16.01.2012.