ORDER MRS. SVEDA TAHIRA SAFDAR, J. - Being aggrieved of judgment dated 9th August, 2012 of Sessions Judge, Mekran at Turbat, whereby the appellant was convicted for the offence .Punishable under Section 302(b), Pakistan Penal Code (PPC), and awarded capital punishment of death as Tazir for committing Qatl-i-Am of Mistri yaqoob, with compensation of Rs. 1,00,000/- (Rupees one lac) to the legal heirs of the deceased, and in default of payment thereof further six months simple imprisonment, the instant appeal was filed with a prayer for setting aside of the conviction, and his acquittal of the charge.
2. This appeal was admitted for hearing on 29th August, 2012. During course on 6th September, 2012 an application bearing Criminal Miscellaneous Application No. 196 of 2012 was filed, with a contention that the parties had been arrived to a compromise and in result thereof the legal heirs of the deceased Muhammad Yaqoob pardoned the appellant/convict, and also waived their right of Qisas, It was prayed that the compromise be accepted, and he (appellant) be acquitted of the charge. Alongwith the approved proforma, affidavits of the legal heirs of the victim Muhammad Yaqoob affirming the fact of compromise were also filed, It was accompanied with a certificate disclosing the details of the legal heirs of the deceased with original special power-of-attorney executed in favour of Imam Bakhsh, one of the legal heirs by the remaining persons, In addition thereto an application was also submitted by the complainant Imam Bakhsh, with a prayer for withdrawal of his case against the appellant.
3. As the offence of Qatl-i-Am being compoundable in nature, therefore, the matter submitted needs consideration. Therefore, to verify the genuineness of the compromise effected between the parties, and also to determine the fact of effecting of the compromise without any duress and compulsion, and also to confirm the details of the legal heirs of the victim, all the relevant papers were marked to the Sessions Judge, Turbat with a direction to submit a comprehensive report to the effect, In compliance thereof the first verification of the Sessions Judge, Turbat was received on 2nd October, 2012. But, it failed to reply the queries made in the order. Further, the learned Deputy Prosecutor General also pointed out several discrepancies in the papers submitted for acceptance of compromise, which were found genuine. Therefore, to over come the deficiency vide order dated 11th October, 2012 the Sessions Judge, Turbat was directed to address the discrepancies, and submit report and also to obtain CNICs of the legal heirs, to affirm the identity of the legal heirs, In compliance thereof second verification, dated 19th October, 2012 was received, but, it was also not in terms as required. But, it was observed that two of the legal heirs namely Maqbool Ahmed and Munir Ahmed were described as minors, as their ages were noted as 14 and 17 years respectively.
This fact did not find place in the papers of the compromise, nor disclosed in accompanying affidavits, which amounts to. Concealment of facts. The learned counsel for the appellant apologized for the omission, and made a request that the matter may be again referred to Sessions Judge, Turbat, and the mother of the minors be allowed to appear, and record her statement on their behalf, being their natural guardian, In order to avoid any further hardships to the legal heirs of the victim the request was acceded to, and the papers were again sent to the concerned Sessions Judge for the purpose. The third verification dated 15th November, 2012 was received in compliance thereof.
4. The perusal of the papers pertaining to the effecting of the compromise between the parties reveals that nine persons namely Zeba, Hameeda, Shakeela, Mst. Mahatoon, Muhammad Hanif, Muhammad Sharif, Maqbool Ahmed, Munir Ahmed, and Imam Bakhsh were described as legal heirs of the victim Muhammad Yaqoob. All the persons asserted to be entered into the compromise. The affidavits of the person's, and their statements on oath before the Sessions Judge concerned as CW-1 to CW-9 were recorded with an affirmation of the fact. Their statements were to the effect that they had arrived to a settlement, and had pardoned the appellant, further, waived their right of Qisas without accepting any Diyat or compensation. To affirm the status of the mentioned persons as legal heirs of the deceased Muhammad Yaqoob an attested certificate issued by the signatures of the Assistant Commissioner, Tump Kech was also obtained, affirming the status of mentioned persons as survived by the victim. Further, on direction of this Court copies of CNICs of some of the legal heirs were also obtained, and annexed with their statements. And the persons in hose favour CNICs had not been issued, their attested photographs were obtained, and annexed with their statements for purpose of their identification.
5. On completion of the process of verification of the fact of compromise, and waiver of the right of Qisas and Diyat on part of legal heirs of the deceased, the matter was finally heard. The learned Prosecutor General showed his no objection on the papers of compromise and acceptance thereof. While the learned counsel for the parties requested for acceptance of the compromise, and in consequence thereof prayed for acquittal of the appellant, It was further contention of the learned counsel that as two of the legal heirs are minors, therefore, to their (minors') extent an order is required to determine the shares of the minors in Diyat amount, and also the method/mode of its payment as required by law.
6. In the instant case the appellant was charged for the offence of Qatl-i-Am of Muhammad Yaqoob, and on completion of the trial he was found guilty of the offence, thereby convicted and punished under Section 302(b), PPC and sentenced to death as Tazir. The offence of murder compoundable in nature, while the right of the same vests with the legal heirs of the victim with reference to Section 345, Cr.P.C, In addition thereto a right of Waiver is available to a sane adult 'Wali" of a victim, In exercise thereof he can waive his right of Qisas without acceptance of any compensation as provided under Section 309, PPC. But, Section 310, PPC is an addition thereto, which also empowered a sane adult Wali" of a victim to compound his right of Qisas on accepting of compensation |n view the mentioned. Provisions only a sane adult Wali" can exercise the right of waiver or compounding to forgo the right of Qisas with or without compensation. But, in both cases the, discretion lies with the Court to accept the compromise or the 'settlement if it fulfilled all the legal requirements, and to make an order of acquittal or conviction of the offender keeping in view the facts and circumstances of the case, and nature of the offence. Therefore, a settlement Arrived between the parties only amounts to waiver or compounding of right of Qisas, therefore, an order of acquittal is not its ultimate result. {{URDU MISS}}
7. In present case seven of the adults Walis of the victim asserted to have waived their right of Qisas without accepting any compensation, and they appeared and affirmed the fact. The formal inquiry made by the Sessions Judge, Turbat, thereby affirmed the details of the legal heirs, and the fact of effecting of compromise without any duress or compulsion, with their free will by the mentioned persons being legal heirs of the deceased, It was to the extent*of . Satisfaction. But, the matter remains for consideration to the extent of two legal heirs namely Maqbool Ahmed and Munir Ahmed described as minors, It is to be dealt separately. Sections 369 and 310, PPC specifically dealt with the situation if the right of Qisas vests in a minor "Wali". Sections 309 and 310, PPC specifically dealt with the situation if the right of Qisas vests in a minor "Wali". Section 309, PPC speaks about an adult sane wali being empowered to waive the right of Qisas. But it is Specifically provided therein that:-- "Provided that the right of Qisas shall not be waived;
(a) Where the Government is the Wali; or
(b) Where the right of Qisas vests in a minor or insane."
This provision placed an embargo on exercise of right of waiver on part of a min or being Wali of a victim. Nor any other person can exercise such right on his behalf. But, Section 310, PPC is an exception. Sub-section (2) of the section is relevant, which reads as under:-- "(2) Where a Wali is a minor or an insane, the Wali . Of such minor or insane wali may compound the right of Qisas on behalf of such minor or insane wali: Provided that the value of Badal-e-Sulh shall not be less then the value of Diyat."
In present case on behalf of two minors their mother Mst. Mahatoon appeared before the Court and recorded her statement on their behalf, with an assertion that she had waived the right of Qisas on behalf of the minors being their mother and natural guardian, and also forgone the Diyat.
But, in view of Section 309, PPC there can be no waiver of right of Qisas to the extent of minors, rather the only right available would be compounding of right of Qisas, which can be exercised by wali of a minor on his behalf. But, this right is further protected by the proviso contained in sub- section (2) of the section. There must be an acceptance of Badal-e- Sulh and value of it shall not be less then the value of Diyat.
8. Keeping in view the legal aspect as discussed hereinabove, and the facts of the case a decision is required about acceptance of the compromise and thereafter, determination of amount of Badal-e-Sulh, for which the minors found entitled. The facts as narrated in preceding paras, on basis of the inquiry conducted, it can safely be concluded that the matter had been settled between the parties, consequent thereof the Walis of the victim Muhammad Yaqoob pardoned the appellant Hameed, waived their right of Qisas, and have no objection on his acquittal. Further, the matter was also to the satisfaction of the, Court that all the adult legal heirs of the deceased victim had entered into compromise without any duress and compulsion; therefore, the compromise to their extent is hereby accepted.
9. But, now the question remains to the extent of the minor legal heirs. Though the mother of the minors waived their right of Qisas on their behalf without accepting any compensation, which was neither legal, nor just. The condition provided in Section 310, PPC of Badal-e-Sulh is to be observed being a legal requirement. Therefore, without determination of value of Badal-e-Sulh the right of Qisas cannot be allowed to be compounded. As provided in Section 310, PPC the value of Badal-e- Sulh shall not be less then the value of Diyat. Section 323, PPC described the value of Diyat, which shall not be less then the value of thirty thousand six hundred and thirty grams of silver, while the Federal Government is bound to declare the value of silver in each year. This section further provided the criteria for fixation Of biyat amount, which is to be determined keeping in view the financial position of the convict, and the heirs of the victim. But in each case it shall not be less then the value of silver so fixed. Keeping in view the law and the circumstances of the case as there is nothing adverse before this Court from which it can be concluded that the settlement arrived by the legal heirs was produced of fraud, coercion, or made under compulsion, therefore, to the extent of minors also it is hereby allowed on acceptance of Badal-e-Sulh fixed at Rs. 32,00,000/- (Rupees thirty two lacs), the value of silver fixed by the Federal Government for year 2012-2013.
10. In addition thereto keeping in view the facts of the case, and the circumstances which resulted in commission of the offence not required awarding of any further, conviction to the appellant as Tazir. Rather, the punishment already undergone would be enough in the circumstances.
11. In view of the above discussion on accepting of the compromise submitted by the parties the appellant Hameed son of Wahid, is acquitted of the charge under Section 302(b), PPC, in case pursuant to F.I.R. No. 37 of 2011, Levies Thana Tump District Kech. He be remained in custody until paid the amount of Badal-e-Sulh determined as Fts. 32,00,000/- as per requirement of Section 311, PPC. It is further directed that on receiving of the amount of Badal-e- Sulh it shall remain deposited in the National Savings Pakistan in the names of the minors Maqbool Ahmed and Munir Ahmed in equal shares until they attained majority.
The appeal stand disposed of in above terms.
The Murder Reference No. 8 of 2012 is replied in negative tor the reasons mentioned hereinabove.