1. ' AFTAB AHMED GORAR, J.---The appellant was convicted by learned 2nd Additional Sessions Judge Karachi South in Sessions Case No,259 of 2009, State v. Abdul Qayyum thereby convicting and sentencing the appellant under section 320, P.P.C. To undergo R.I. For 5 years and is also to pay Diyat amount to the legal heirs of deceased. In case of failure to pay Diyat amount the appellant would suffer simple imprisonment till the payment of diyat amount or part thereof as the case may be. Appellant has further been convicted for offence under section 337-G, P.P.C. To undergo R.I for 2 years and is also liable to pay fine as Daman which would be paid to the injured. Further appellant has been convicted under section 427, P.P.C. Undergo for 6 months and he is also liable to pay fine of Rs,10,000 which should be to the legal heirs of the deceased. In case appellant fail to pay the fine he will suffer simple imprisonment for one month. However, benefit of section 382-B, Cr.P.C. Has been extended to the appellant and it is further ordered that all sentences would run concurrently.
2. The appellant preferred present appeal before this court on 31-1-2011 during pendency whereof, the parties filed application under section 345(2) for permission to enter into compromise and application under section 345(6), Cr.P.C. For accepting compromise between the parties.
3. ' In the application, it is stated that both the parties have patched up their differences outside the Court and injured wife of deceased has pardoned the appellant/accused in the name of Almighty Allah and waived all the claims.
4. ' Pursuant to Court's directions dated 31-7-2012 whereby the copies of the compromise applications and R & P of Sessions Case No,259 of 2009 were sent to learned 2nd Additional Sessions Judge Karachi South for holding an inquiry as to correctness and genuineness of the compromise between the parties. The learned trial Court has submitted its report dated 18-10-2012, wherein the correctness and genuineness of the proposed compromise has been verified.
5. ' Learned counsel for the appellant submitted that since it was on account of an accident whereby the deceased died, whereas, the parties have patched up outside the Court and wife of the deceased has pardoned the appellant in the name of Almighty Allah, the listed applications may be allowed, the appellant may be acquitted and the appeal may be disposed of as such. In support of his contention, he has placed reliance on the following judgments.
(1) Muhammad Hanif v. The State 1993 PCr.LJ 651
(2) Allauddin v. The State 2001 MLD 1757
(3) Muhammad Arif v. The State 2001 PCr.LJ 1804.
(4) Abdul Ghani alias Ghani v. The State 2008 PCr.LJ 455
(5) Fazal Hussain v. The State 2002 PCr.LJ 1256 ' Learned counsel for complainant, who is present in Court has extended no objection if the compromise is accepted and the appellant may be. Acquitted.
6. ' Learned A.P.-G. Has also extended no objection if the listed applications are allowed and the matter is disposed of by accepting the compromise, however, subject to payment of Diyat amount to the legal heirs of the deceased. It is contended by the learned A.P.-G. That the mother cannot forego the amount of Diyat on behalf of the minor legal heirs of the deceased. It is further contended that a Wali has no right to waive minor's share of Diyat and the same is required to be deposited by the accused. Learned APG further argued that the amount of Diyat fixed by the learned trial court is less than as prescribed under section 323. Learned A.P.-G. Has referred to provision of sections 309, 310 Cr.P.C. As well as section 338-E P.P.C. In support of his contention, he has placed reliance on the following judgments.
(1) Safdar Ali and others v. The State PLD 1992 SC 246.
(2) Hasan Din and another v. The State (sic) SCMR 1574.
(3) Javaid Masih v. The State 1993 SCMR 1574.
(4) Ibrahim and 2 others v. The State 1995 SCMR 1296.
(5) Muhammad Nazar v. The State 1995 MLD 1503
(6) Bashir Ahmed v. The State 2004 SCMR 236.
(7) Muhammad Iqbal v. The State 1999 SCMR 403.
7. ' I have heard the learned counsel for the parties and have also gone through the applications filed by the parties. Since the offence under section 320, P.P.C. Is made compoundable by virtue of section 345, Cr.P.C. And the injured Mst. Voila admitted the contents of the compromise application and has pardoned the appellant in the name of Almighty Allah and waived all the claims. The application under sections 345(2), Cr.P.C. And 345(4), Cr.P.C. Were sent to learned trial court to examine the genuineness of the compromise vide order dated 31-7-2012. Whereafter the learned trial court has submitted its . Compliance report dated 18-10-12, wherein after recording the statement of the legal heirs of the deceased it has been held that compromise reached between the parties is genuine. Offence under section 320, P.P.C. Is compoundable whereas matter has been patched up between the parties. The major legal heirs of the deceased as well as Wali of the minor legal heirs have pardoned the applicant/accused in the name of Almighty Allah and have waived all claims including Diyat. Case-law relied upon by the learned counsel for the appellant under the circumstances suggests that such compromise on behalf of the major legal heirs as well as minor legal heirs through Wali is valid, whereas the amount of Diyat can also be waived on behalf of the minor legal heirs through Wali. However from perusal of the case-law relied upon by the learned A.P.-G., it appears that in the case of murder share of the amount of Diyat on behalf of the minor legal heirs of the deceased cannot be waived through Wali.
8. ' Learned counsel for applicant has contended that the case-law relied upon in the instant case by the learned A.P.-G. Is distinguishable as the same relate to an offence under section 302. P.P.C.
9. (Qatl-i-amd), whereas in the instant case the offence is punishable under section 320, P.P.C. (Qatl- i-Khata). In the case of Hussain Bux and others v. The State reported as PLD 2003 Karachi 127, a Division Bench of this Court while examining the provision of waiver and compounding of offence after having referred to provision of sections 309, 310, 323, 338-E, P.P.C. And the provision of section 345 Cr.P.C, while dealing a murder case under section 302 has approved the compromise reached between the parties and acquitted the accused persons from the charge. It will be appropriate to reproduce the relevant finding of Division Bench of this Court, which reads as follows:-- "We would like to clarify that an adult sane "Wali" has a right to waive the right of Qisas and to retain his right of receiving Diyat or may waive the right of Qisas as well as Diyat, which is a compensation/substitute for the waiver of right of Qisas. Thus if a "Wali" of deceased/victim waives the right of Qisas as well as compensation i,e, Diyat, the offender is to be acquitted of the charge.
10. However, if the "Wali" has merely waived the right of -Qisas then the offender is liable to be convicted for Qatl-e-amd or as the case may be and is liable to the sentence of paying compensation by way of Diyat or payment of Badl-e-Sulh. The reason being that Qisas and Diyat are two distinct punishments and are not the same kind of punishment. For this reason Qisas and Diyat are separately and distinct punishments and are not the same kind of punishment. For this reason Qisas and Diyat are separately and distinctly mentioned in section 53, P.P.C. Which enumerates different kinds of punishments to which offenders are liable under the provisions of P.P.C. Qisas and Diyat have been defined separately in section 299, P.P.C. In the instant case the accused has been convicted and sentence under section 320, P.P.C. i,e, Qatl-i-khata to suffer R.I.
11. For five years and to pay Diyat amount to the legal heirs of the deceased which offence has duly been compounded by legal heirs of the deceased wherein they have waived their right of Qisas and Diyat and have pardoned the accused in the name of Almighty Allah. Also accused has been convicted and sentenced under section 337-G, P.P.C. To undergo R.I. For 2 years and is also liable to pay fine of Daman which would be paid to the injured Mst. Voila is injured in this case she also compound the offence with accused being an injured.
12. ' Keeping in view the entire stock of this case whereby the learned trial Court has submitted the report about the genuineness of the compromise reached between the parties and the legal heirs of the deceased had compounded the offence waived their right of Diyat.
13. ' Mst. Voila injured and wife of deceased and Wali of minor legal heirs of deceased and Mst. Amber Anum elder daughter of deceased are present before the court and raised their no objection if the appellant will be acquitted from charge.
14. Resultantly, this appeal is disposed of in view of the compromise as above. Appellant Abdul Qayyum is acquitted of the offence with which he is charged. He shall be released forthwith if not required in any other case.
15. ' Criminal Appeal No,57 of 2011 is disposed of along with pending applications.