SALAHUDDIN PANHWAR, J.---Through Miscellaneous Application No,2620 of 2013, the appellants have moved two applications, under section 345(2), Cr.P.C. (permission to compound) and another application under section 345(6), Cr.P.C. Regarding acquittal on compromise, between the parties, in this appeal, filed against sentence of life imprisonment awarded to appellants for offence under section 302 read with section 34, P.P.C. By the Court of 1st Additional Sessions Judge, Shaheed Benazirabad in S.C. No,159/2012 "Re-S/v Imam Bux and others". The appellants have claimed Mst. Moomal (mother of deceased) to be only competent legal heir to compound the offence and has attached her affidavit with compromise application(s).
2. Order dated 8-7-2013, reveals, that the compromise application(s), were sent to learned 1st Addl.
Sessions Judge, Shaheed Benazirabad with specific direction to initiate all required proceedings regarding genuineness of compromise, conduct inquiry and submit such report.
3. Learned 1st Additional Sessions Judge, Shaheed Benazirabad, during enquiry called report from Mukhtiarkar regarding L.Rs; got notice of compromised published in daily Newspaper Kawish' and recorded the statement of Mst. Moomal, mother of deceased Mst. Peerani and submitted such report vide letter No,1581/2013 dated 27-7-2013.
4. Learned counsel for the appellant(s) has argued that albeit deceased Mst. Peerani has left mother and one sister as her legal heirs; sister is lunatic; hence she (Mst. Moomal, mother of deceased) can competently compound the offence by excluding the other legal heirs. In support of his contention he has placed reliance on the case law, reported as 2006 SCMR 1916.
5. On the other hand, the learned AAG extended his No objection.
6. I have considered the arguments of respective sides and have also gone through the available record.
7. Before going into details of contentions of learned counsel for the parties, it would be proper to refer the report of the Mukhtiarkar, Sakrand whereby he had submitted the report about legal heirs of Mst. Peerani as:-
(1) Mst. Moomal ........... Mother of deceased Peerani
(2) Mst. Suhnee ........... Sister of deceased Peerani
(3) Imam Bux........... Husband of deceased (one of convicts)
The report further shows that: "Two witnesses named above have further stated that one daughter of deceased Mst. Peerani, age about one year (Her name could not be disclosed) was expired after the death of her Mother Mst. Peerani".
The husband, being one of the convicts, stood debarred from succession per section 317, P.P.C.
Which reads as:-
317. Person committing gad debarred from succession.---Where a person committing qatl-i- amd or qatl shibh-i-amd is an heir or a beneficiary under a will, he shall be debarred from succeeding to the estate of the victim as an heir or a beneficiary.
Now, there remains Mst. Momal (mother of deceased) and Mst. Suhnee (sister of the deceased).
The learned counsel has insisted that sister of the deceased shall stand excluded by mother, therefore, compromise processed by Mst. Moomal be accepted. Before going any further It would be conducive to refer the relevant portion of the case law, referred by the learned counsel for the appellants which reads as under:- "When the deceased leaves behind him a father, a mother, and brothers (or one brother and two sisters, or four sisters), the mother takes one sixth and the father takes the reminder, to the total exclusion of the brothers or brothers and sisters".
In this case, undisputedly, the step-mother is not an heir of the deceased and we have no doubt in our mind that the brothers and sisters of the deceased are also not the legal heirs of the deceased. We may also observe that there is no difference of opinion in the Sunni and shia schools of thought as far as exclusion of brothers and sisters of the deceased by the father is concerned'.
Perusal of above shows that above proposition of law is not applicable to the facts of instant case.
No doubt, according to dictum of apex court; "that when only father is alive and mother has died then he (father) excludes brothers and sisters when the question relates to the inheritance of estate of unmarried child (son or daughter) and he alone can competently compound the offence without seeking consent of brothers and sisters." Thus, suffice to say that the mother does not enjoy such status because she does not exclude the sister and brothers in such a situation. Sisters becomes as 'sharers' when there is no (1) child; (2) child of a son how-low-soever, (3) father or (4) true grandfather.
8. At this juncture; germane to refer Misc. Application No,4517/2013, with regard to appointment of Mst. Moomal as Wali/guardian of insane Mst. Sohni, which shows that parties agreed to legal position that Mst. Sohni is also one of the sharer(s) of deceased Mst. Peerani. However, since the sister of the deceased Peerani namely Mst. Suhnee has been claimed to be, lunatic, thus a reference to provision of section 313(2)(b) of the P.P.C. Is relevant which reads as under:-
(b) has no wali other than a minor or insane or one of the wali is a minor or insane, the father or if he not alive the paternal grandfather of such wali shall have the right of Qisas on his behalf: Provided that, if the minor or insane wali has no father or paternal grandfather, how high-so-ever, alive and no guardian has been appointed by the Court, the government shall have the right of Qisas on his behalf; In the instant matter, Mst. Suhnee has no father or paternal grand father (as per claim of the parties) therefore, proper course in such eventuality is the one which is provided by section 345(4) of the Cr.P.C. Which reads as under:-
(4) When the person who would otherwise be competent to compound the offence under this section is (under the age of eighteen years or is) an idiot or a lunatic, any person competent to contract on his behalf may (with the permission of the Court) compound such offence.
9. Although, the appointment of Mst. Moomal as guardian/wali is without proper reference of the section i.e, 345(4) of the Cr.P.C., however, such mistake alone shall not stand in the way to examine legality of the request. Manifestly none has objected this application, therefore, appointment of Mst.
Moomal, the mother of insane Mst. Suhni, requires to be entertained.
10. Be that as it may, there is another aspect which requires serious consideration so as to decide maintainability of instant compromise application. 'In the instant matter, it has also come on record that the deceased was not un-married and even was having a child (daughter) therefore, she (child of deceased) was/is also to be taken as 'heirs of the deceased/victim' as mentioned in column-III of the table, so provided in section 345, Cr.P.C. The subsequent death of. One of the, heirs would not take away the status of such a heir which he/she enjoyed per column-III of the table which is titled as 'Persons by whom the offence may be compounded'. The column-III for section 302, P.P.C. defines as "By the heirs of the victims (other than the accused or the convict if the offence has been committed by him in the name or on the pretext of Karo Kari, Siyah Kari or similar other customs or practices)".
No legal heir of such a child (daughter of deceased Peerani) has been shown hence in absence thereof the compromise cannot be said to be complete which requires waiving of right of Qisas and Diyat by 'all the heirs' because such right is equally inheritable by the successors of any legal heir of the victim, who during his life time had either not entered into compromise with the convict or refused to enter into such compromise. Reference can be made by the case of 'Abdul Rashid v.
State' (2013 SCMR 1281) wherein it is held:-
(15) Thus, after a careful reading of the provisions of section 345 Cr.P.C., other relevant guiding principles of Islamic jurisprudence in this regard and the cases cited at the Bar, we are of the opinion that not only the surviving legal heirs of the victims have legal authority to waive right of qisas and compound the offence with the appellant/convict upon payment of compensation of diyat or without payment in lieu of pleasure of God, but such right is equally inheritable by the successors of any legal heir of the victim, who during his life time had either not entered into compromise with the appellant/convict or refused to enter into such compromise, as despite his eariier refusal he was competent to change his mind and to subsequently enter into such compromise with the appellant/convict, while the principle of estoppel was not attractedin such situation to debar his successor from exercising such right independently at their own free (Emphasis provided).
11. As regard the compensation, awarded under section 544-A, Cr.P.C., it would suffice to say that after conviction the person, so specified in relevant column of section 345(1) of the Code, though continues to compound the offence but such competence shall not authorize him to waive the compensation, awarded under section 544-A,' Cr.P.C. It would be significant to refer the dictum of honourable Supreme Court in case of 'Muhammad Tufail v. Sessions Judge, Attock (PLD 2004 SC 89), wherein it was held that: Whereas under section 544-A, Cr. P. C. There is no such proviso whereby such recovery in respect of compensation when awarded could be written off or waived even if substantive sentence are served out.'
12. Since from above discussion, it becomes quite clear that in compromise application(s) have not been filed by 'all the legal heirs' as the term 'all the heirs' shall include the baby Jeedal (daughter deceased Peerani) and on death her legal heirs, therefore, instant compromise application(s), being incomplete are dismissed as no acquittal could be allowed on ground of compromise even if a single legal heir does not consent thereto. However, the parties would be at liberty to re-submit the compromise application(s) if all heirs so agree.