' SALAHUDDIN PANHWAR, J.---Through instant compromise application(s), filed by complainant and accused, they jointly seek disposal of the instant appeal whereby the appellant assailed the impugned judgment dated 17-9-2013 passed by learned Ilnd Additional Sessions Judge, Badin in Sessions Case No.139 of 2011 (Re-The State v. Karim Bux), wherein the appellant was convicted under section 302(b), P.P.C. And sentenced to life imprisonment as Ta'zir with direction to pay an amount of Rs.2,00,000 as compensation as provided under section 544-A, Cr.P.C. To the legal heirs of deceased.
2. At the outset of the proceedings, learned counsel for the appellant as well as complainant has contended that since the parties have buried their hatchets due to intervention of Nekmards, therefore, permission to enter into compromise may be accorded and compromise between the parties may be accepted.
3. Learned D.P.G. After perusal of the inquiry report furnished by trial judge has extended his no objection with regard to acceptance of compromise.
4. Record reflects that by order dated 28-2-2014, compromise applications were referred to the trial Court with direction to conduct complete inquiry by recording statements of the legal heirs of deceased and submit such report. Pursuance to that, learned trial Judge has placed report with regard to the compromise between the appellant and legal heirs of deceased Mir Khan Khoso, which reflects that the trial Judge has recorded the statements of legal heirs of deceased Mir Khan Khoso namely complainant Murad Ali son of Shah Baig Khoso (father), Mst.Sharifan wife of Murad Ali Khoso (mother) and Mst. Sahibzadi w/o late Mir Khan (wife), wherein they have categorically deposed that they have pardoned the appellant on their own free will, consent and without any coercion with regard to their right of Qisas and Diyat and thus they have no objection if the appellant is acquitted from the charge of this case. Report further reflects that compromise arrived between the parties is genuine and volunteer one. In support of report, learned Judge has appended original statements of legal heirs as well as report from Mukhtiarkar (Revenue) Matti.
5. On meticulous examination of impugned judgment and inquiry report coupled with statements, it is manifest that offence whereby the appellant was convicted by trial Judge is compoundable per Schedule-II of the Code and legal heirs have competently waived off their right of Qisas and Diyat, therefore, it would be in the harmony of their locality to accept the compromise. Besides, manner of offence does not fall within the ambit of "fasad fil-arz".
6. At this juncture, it is worth to mention that while examination of the judgment of trial court, it is surfaced that the appellant was also ordered to pay Rs.200,000 as compensation to Legal Heirs of the deceased as provided by section 544-A Cr.P.C. The legal heir (s) are competent to waive their right of Qisas and Diyat as the same is permissible by the Law itself, however, it is to be seen whether such competence is available to them (persons by whom the offence may be compounded) of section 345(i) of the Code or otherwise. For proper answer, it would be pertinent to refer to the provision of section 544-A, Cr.P.C., which reads as:-- 544-A, Cr.P.C., Compensation to the heirs of the person killed, etc.---(1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the Court, shall, when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of person whose death has been cause, or to the person hurt or injured or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.
7. The plain reading of the above proviso makes it clear that compensation is in addition to actual conviction (sentence) for the offence which the court has to award. The position, being so, further proves that the section 345(i) of the Code permits the person (so specified in relevant column of this section) to compound the offence but not the 'compensation'. The Law permits compounding of the offence only. The term 'offence' is not synonym to 'compensation'. The section 4(o) of the Criminal Procedure defines the word 'offence' as:-- 'Offence' means any act or omission made punishable by any law for the time being in force, it also includes any act in respect of which a complaint may be filed under section 20 of the Cattle Trespass Act, 1871' ' while the word 'compensation' has been defined by Black's Law Dictionary as:-- 'compensation'.
(1) Remuneration and other benefits received in return for services rendered; esp., salary or wages.
(2) Payment of damages, or any other act that a court orders to be done by a person who has caused injury to another and must therefore make the other whole.
8. From comparative reading of both words, it is clear that 'compensation' is a kind of damage(s) which the Court awards and it is entirely independent to that of offence or its punishment. This proviso comes into play only where the Court is convicting a person and needless to say that a conviction only comes after conclusion of trial or where one pleads guilty. The object and purpose of this proviso appears to be nothing but to compensate a little regarding damage. This also becomes quite obvious from reading of the section 546 of the Code, which reads as under:- '546.-Paym ents to be taken into account in subsequent suit.
At the time of awarding compensation in any subsequent civil suit relating to the same matter the Court shall take into account any sum paid or recovered as compensation under section (544-A or section) 545'.
9. Thus, in view of above it can safely be said that competence of persons, so specified in relevant column of section 345(i) of the Code, though continues to compound the offence even after conviction but such competence shall not, be available to him / them in matter of compensation, awarded under section 544-A of the Code. Thus, such person or persons shall not be competent to waive the compensation even. It would be significant to refer the dictum of Honourable Supreme Court in case of "Muhammad Tufail v. Sessions Judge, Attack (PLD 2004 SC 89), wherein it was held that: "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 sentences are served out"
10. At this occasion it would be also conducive to refer the case of Shahzad Ahmed alias Mitho and another v. The State (2005 PCr.LJ 1316), wherein honourable Federal Shariat Court while deciding same controversy and examining the other dicta on instant aspect has held as under:- "It would be worthwhile to mention here that in the cases of Fareed Bakhsh v. Saeed Ahmed and others and Mst. Sarwar Jan v. Ayub and another 1995 SCMR 1679, it was held by the honourable Supreme Court of Pakistan that provision of section 544-A, Cr.P.C. Is mandatory and that under this section even, if the convict undergoes imprisonment in default of payment of compensation, then also the said amount can be recovered from his as arrears of land revenue.
The above view was affirmed by the apex Court in the case of Muhammad Tufail v. Sessions Judge, Attock and 2 others reported as PLD 2004 SC 89. Reference, in this regard, may also be usefully made to the case of Muhammad Younis v. The State 2002 SCMR 1308 wherein, a sentence of 14 years imprisonment was inflicted on the accused under section 311, P.P.C. As Ta'zir, despite compromise and compensation to the legal heirs was enhanced from Rs.70,000 to Rs.2,50,000 under section 544-A, Cr.P.C. In the case of Muhammad Ameer v. The State 2001 PCr.LJ 1530 it was held that payment of compensation to the legal heirs of the deceased being in addition to any sentence awarded to accused for the commission of an offence, doctrine of double jeopardy would not be attracted, in the case of Umer Hayat v. The State 1990 PCr.LJ 125 it was laid down that compensation required to be paid under section 544-A, Cr.P.C. To the victim of aggression, by a convict, is in the form of an additional burden on him, to any sentence, which he is visited with and needs to be assessed and imposed independently of the sentence of fine so levied. In the case of Muhammad Hanif v. Abdur Rahman and others 1977 SCMR 471 it was held that grant of compensation under section 544-A, Cr. P.C. Is mandatory and the Court was bound to record reasons if it considers otherwise."
11. Thus, when learned counsel for the appellant was confronted with this legal position, while conceding he has pleaded that appellant is a poor and has no source of income, therefore, he is unable to pay such compensation. Since the compensation is to be determined having regard to the circumstances of the case and since parties, including those entitled to such compensation, have patched up, therefore, it would meet the ends of justice to reduce the compensation amount from Rs.200,000 to Rs.100,000. It is worth to add in case of Shahzad Ahmed alias Mithoo and another (supra), it is held that compensation can be reduced but cannot be waived off.
12. Keeping in view the above circumstances, application for permission to enter into compromise is allowed. Consequently, compromise between the parries is accepted thereby impugned judgment is set aside and the appellant is acquitted of the charge. However, while considering plea of poverty of appellant, compensation from Rs.200,000 is reduced to Rs.100,000. The appellant shall be released subject to his furnishing bond/undertaking to the affect that after the release he will pay the amount of compensation within a period of one year in four installments to the legal heirs of deceased. In case of default in payment of compensation, the same shall be recovered from the appellant as arrears of land revenue.
13. The instant Criminal Jail Appeal stands disposed along with listed applications.