MAZHAR ALAM KHAN MIANKHEL, C J.---By this single judgment, we propose to decide Criminal Appeal No.667/2010, filed by appellant namely, Manzar (against conviction) as well as Criminal Revision No.173/2010, filed by Muhammad Iqbal, complainant (for enhancement of sentence as well as compensation amount) as both arise out of the same judgment.
2. Manzar, appellant herein along with his convicted co-accused namely, Sardar Hussain and absconding co- accused namely, Sher Nawas were charged for the murder of deceased Afzal Sher and for attempting at the life of complainant Muhammad Iqbal. A case under sections 302/324/34, P.P.C., was registered against them vide FIR No.582, dated 29-11-1997 at Police Station Shahbaz Garhi, Mardan. Accused Sardar Hussain was convicted on 3-4-2000 while the present appellant due to, abscondence was later on tried by the learned Additional Sessions Judge-II, Mardan, who, after conclusion of the trial, also convicted him under section 302(b) P.P.C. Read with section 34 of the P.P.C. And sentenced him to "Imprisonment for Life" as 'Tazir' with a fine of Rs.50,000 or, in default thereof, to suffer one year S.I with the further direction to pay compensation amount of Rs.1,00,000, payable to the legal heirs of deceased Afzal Sher under section 544-A of the Cr.P.C., which was ordered to be recoverable as land revenue; also convicted him under section 324/34, P.P.C. For attempting at the life of complainant Muhammad Iqbal and sentenced him to undergo Seven years R.I. With a fine of Rs.50,000, or, in default thereof, to further suffer one year S.I.; also convicted him under section 337-F(ii), P.P.C. To pay R.s.5,000 as 'Daman' and shall also undergo one year R.I.
As Tazir and also convicted him under section 337-F(v), P.P.C. And sentenced him to undergo three years RI as Tazir with the direction to pay Rs.50,000 as 'Daman' to the injured complainant and till the realization of Daman amount, he was ordered to be kept in judicial lockup. Benefit of section 382-B of the Cr.P.C. Was, however, ordered to be extended to him and all the sentences were directed to run concurrently vide judgment dated 5-7-2010. Since the appellant as well as complainant party both were aggrieved from the impugned judgment, the former filed appeal against conviction while the latter filed criminal revision for the enhancement of the sentence of the appellant.
3. During the pendency of the appeal and revision, the matter was patched up between the parties. The case was sent to the learned Trial Court/learned Additional Sessions Judge-II, Mardan to verify the genuineness of the compromise. The learned Additional Sessions Judge submitted his report affirming the genuineness of the patch up between the parties. He also recorded the statement of Muhammad Iqbal, complainant/victim; joint statement of M/s. Khairul Nabi, Abidin, Mst Rihayat, Mst. Rozia and Mst. Zaibi, the major legal heirs of deceased Afzal Sher; joint statement of elders of the locality namely, Gul Rehman and Mir Haus, affirming that the complainant and major legal heirs of the deceased Afzal Sher have pardoned the appellant in the name of 'Almighty Allah' by waiving of their right of 'Qisas' and 'Diyat' and that they have no objection to the acquittal of the appellant. So far as the case of Zaheerul Islam, the minor legal heir of deceased, is concerned, his share of diyat amount of Rs.56,000/- from the total Diyat amount of Rs.2,51,625.04, fixed for the year, 1997-98, was deposited on behalf of the appellant before the learned Trial Court, which further, on the direction of the learned Trial Court, was deposited in the National Saving Center in a profitable scheme in his name. After completion of entire process, the case was sent to this Court and accordingly fixed for hearing on 28-8-2014 but was adjourned for 16-9-2014 and then for 9-10-2014 for assistance of the Court on the point of fixation of Diyat amount in the light of the latest view of the apex Court.
4. On the date fixed i.e. 9-10-2014, when we at the very outset asked the learned Assistant Advocate General about his viewpoint qua fixation of Diyat amount, he by placing reliance on the two judgments of the apex Court i.e. Suo Motu Action regarding, non-payment of the compensation amount to the poor electrician, who has been pressurized by the political figure of PML(N) as well as by the police to enter into a compromise with the accused Murderers of his 12 years old son: In the matter of Suo motu case No.19 of 2011 (2012 SCMR 437) and Muhammad Anwar v. State (PLD 2012 SC 769) submitted that it should be determined according to the value of Diyat prevailing at the time, when the compromise was effected and not the value prevailing at time of commission of offence. When we confronted the learned counsel for the appellant with this situation he by referring to Article 12(2) of the Constitution of Islamic Republic of Pakistan, 1973 submitted that when the Statute, itself, gives protection in this regard, the value of Diyat amount should be the value prevalent at the time of commission of crime and not the value prevailing at the time effecting compromise. He by distinguishing the judgments, so referred by the learned Assistant Advocate General, further submitted that so far as the former judgment is concerned, it was delivered in a Suo Motu case, wherein, the compromise was effected purely on pressure and coercion and so far as the latter judgment is concerned, when the law, itself, is clear, it is not binding in the instant matter, therefore, both the judgments are not applicable to the case in hand.
The learned counsel for the appellant, at this stage, however, Submitted that though the appellant is ready to pay the balance amount of Diyat even today but he agitated this point for the reason that this issue be decided once for all. We by considering this aspect of the case, reserved the case for order but, at the same time, by keeping in mind the detention of the appellant since long and repeated adjournments of the instant case for deciding this issue, issued direction for the interim release of the appellant till the final decision of this appeal, if not involved in any other criminal case with the condition to deposit the balance amount of the value of Diyat, prevailing today, in the Trial Court within a week's time positively. When the appellant, despite depositing the balance amount has not been released, he again filed an application in this regard, which was allowed on 28-10-2014 in the following manner:-- In this view of the matter, we admit and allow this Cr.M. And direct the interim release of the petitioner till the final decision of the main appeal, if he is not involved in any other criminal case.
Issue his release warrants forthwith. However, the petitioner is directed not to leave the station without prior permission of the concerned SHO and to regularly visit the concerned Police Station twice a month, till the final decision of the main appeal.
5. In the instant case, all the major legal heirs of the deceased have waived of their rights of Qisas and Diyat except minor legal heir namely, Zaheerul Islam, whose right of Qisas under the proviso of section 309(1)(b) of the P.P.C., can't be waived of right of Qisas in Qatl-i-Amd can be compounded under section 310 of the P.P.C. At anytime by an adult sane wali by accepting "Badal-i-sulh', which shall not be less than the value of Diyat, which, as per injunctions of Islam, as laid down in the Holy Quran and Sunnah, is thirty thousand six hundred and thirty grams of Silver. As per section 323(2), P.P.C., value of above said amount of Silver has to be notified in the official Gazette by the Federal Government each year on the 1st day of July or on such date as it may deem fit, for a financial year. There is again no cavil to the fact that it is the minimum value specified in section 323(2) of the P.P.C. And the Court while determining the "Badal-i-sulh' can fix the value of Diyat by keeping in view the financial position of the-convict but the law on the subject is silent as to whether the said minimum value should be the value prevailing at the time of occurrence or on the day, the compromise is being effected. This proposition was settled down by the Hon'ble Supreme Court of Pakistan in Suo Motu action regarding non-payment of compensation to the poor electrician reported as 2012 SCMR 437. Similar view was adopted by the apex Court in the case Muhammad Anwar v. State (Supra) and it was held that it should not be less than the value duly notified by the Federal Government in the financial year, when the compromise/compounding of Right of Qisas in Badal-i-Sulh was being made. But the argument of the learned counsel for the convict/appellant was that in view of Article 12 of the Constitution, it should be the value prevalent at the time of occurrence as this being the fundamental right of a person that his punishment/penalty should not be greater or of different in kind from the penalty prescribed under the law at the time of commission of offence. For ready Reference Article 12 of the Constitution is reproduced below:-- Article 12 Protection against retrospective Punishment:
(1) No law shall authorize the punishment of a person---
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.
6. No doubt, the above quoted provision of the Constitution is clear in its context but we're also clear in our mind that fixation of Diyat amount prevailing at the time of compromise is in accordance with law and also supported by the above referred verdicts of the Hon'ble Supreme Court of Pakistan and in no terms can be considered against the provision of Article 12 of the Constitution.
No doubt, Diyat has been termed as punishment in section 53 of Pakistan Penal Code, 1860 but awarding of punishment of Diyat would come for consideration only when it is to be awarded as punishment but here Diyat is given as Badl-e-Sulah and as per above dicta of the Hon'ble Supreme Court of Pakistan, Badl-eSulah is like a contract between the parties, therefore, the value of Badl-e-Sulah shall not be less than the value of Diyat amount. So, naturally, the minimum value of Diyat notified by the Federal Government for that financial year would be the value for consideration and this, in our categoric view, is not a penalty imposed upon the convict but as Badl-e-Sulah. The substitute prescribed by law for Badl-e-Sulah is the Diyat amount and when the Diyat would be ordered to be paid, then it would be the value prevailing at the time of compounding of offence / order of the Court. This, in no way, can be termed as a punishment/penalty prescribed by the law. The case law as laid down by the apex Court, in our considered view, is in accordance with the provision of Article 12 of the Constitution.
7. If we, for the sake of arguments, presume for a while that the value of Diyat amount should be fixed at the rate, when the occurrence has taken place and not from the prevailing rate, we're sorry to say, that this _stance of the appellant again goes against him and wouldn't be helpful to him because at the time of commission of offence i.e. In the year 1997, all the legal heirs, who are major now, were minors and, in this regard, they're also entitled to be paid. Diyat amount, notwithstanding, they being major now waived of their rights of Qisas/Diyat. No doubt, an accused is a favorite child of the law and always in search of technicalities, which favour him but he is not so favorite to be permitted to snatch the rights of the others, which, otherwise, are given not only by the law but Sharia also.
So what has been discussed above, we without any hesitation can hold that it is the value prevailing at the time of compounding the offence.
8. For the reason discussed above, we allow the criminal appeal on the basis of patch up/compromise, set aside the conviction and sentences recorded by the learned Trial Court and acquit the appellant of the charges levelled against him. Since the appellant has already been released after the payment of balance amount of Diyat to the minor son of the deceased, the orders of this Court dated 9-10-2014 & 28-10-2014 qua his interim release are hereby confirmed and he is discharged from the personal appearance before the SHO concerned. The balance amount, so deposited by the appellant should also be deposited along with earlier amount of Diyat amounting to Rs.56,000 in the National Saving Center in profitable Scheme. The Criminal Revision for the enhancement of sentence is hereby dismissed accordingly.