' ZAFAR ULLAH KHAN KHAKWANI, J.---Qasim Ijaz, appellant was tried by the learned Addl. Sessions Judge, Bhalwal Distt. Sargodha in case F.I.R. No. 15 dated 17.1.2012 under Section 302/377 P.P.C.
Registered at Police Station City Bhalwal Distt. Sargodha. At conclusion of trial -the learned trial Judge found the appellant guilty of the offence and consequently vide judgment dated 25.1.2014 convicted him under Section 302(b) P.P.C. And sentenced him to death. He was also directed to pay Rs.2,00,000/- to the legal heirs of Muhammad Waqas deceased as compensation under Section 544-A Cr.P.C. Or to undergo six months S.I. He was also convicted under Section 377 P.P.C.
And sentenced to undergo rigorous imprisonment for a period of ten years alongwith fine of Rs.50,000/- and in case of non-payment of fine to further undergo simple imprisonment for a period of six months. Benefit of Section 382-B Cr.P.C. Was also granted to him.
2. Feeling aggrieved of above conviction and sentences the appellant has filed Cr. Appeal No. 138 of 2014. The State has also approached this Court by way of Murder Reference No. 77 of 2014 seeking confirmation of sentence of death awarded to Qasim Ijaz convict by the learned trial Court.
During pendency of these matters before this Court, Cr. Misc. No. 968-M of 2014 has been filed for acquittal of the convict on the ground that legal heirs of the deceased have effected a compromise with the appellant. All these three interconnected matters are being decided together through this single judgment.
3. Vide order dated 27.3.2014 this Court directed the learned Sessions Judge, Sargodha to ascertain legal heirs of the deceased and verify genuineness of the compromise acclaimed to have been arrived at between the parties.
4. The learned Sessions Judge, Sargodha vide report dated 23.4.2014 has submitted that Muhammad Waqas deceased was unmarried at the time of occurrence and was thus survived by his parents only as his legal heirs, namely, Muhammad Mumtaz (father) and Mst. Safia Bibi (mother). The learned Sessions Judge recorded their statements separately who deposed that they have entered into a compromise with Qasim Ijaz, convict and have forgiven him and have waived their right of qisas in the name of Almighty Allah. They further deposed that they have no objection to the acquittal of the appellant for the murder of their son Muhammad Waqas. The learned Sessions Judge has verified that the compromise has been entered into voluntarily and without fear. After going through all the record available in this file and perusing the report submitted by the learned Sessions Judge, this Court is satisfied that the legal heirs of the deceased have effected compromise with their own will and volition and without duress or coercion. Since the parties have effected a compromise with regard to murder of Muhammad Waqas and have resorted to amicable relations, therefore, to promote harmony and goodwill between the parties and to ensure peace and tranquility in the vicinity we accept the compromise of legal heirs of Muhammad Waqas deceased with Qasim Ijaz, appellant for his murder.
5. The appellant was also convicted under Section 377 P.P.C. And sentenced to suffer 10 years R.I.
And a fine of Rs.50,000/- or in default thereof to undergo six months S.I. Said offence is not compoundable. We have observed that legal heirs of Muhammad Waqas deceased have pardoned the appellant for the murder of their son. No doubt that committing murder of a person is a major offence. The said offence has been compounded. Although nature of offence under Section 377 P.P.C. B is not less in gravity than an offence under Section 302 P.P.C. Yet there are instances that when the parties have decided to bury their hatchet and the legal heirs have decided to enter into a compromise, the courts of law have always taken lenient view with regard to akin offences falling under the category of non-compoundable offences. It has been held by the apex Court in the case titled Ghulam Farid alias Farida v. The State (PLD 2006 SC 53) that the court can consider a compromise as a mitigating circumstance. Relevant portion runs as under:-- "There is no cavil to the proposition that the Courts at all levels without any legal impediment, while deciding the criminal, cases on merits, in the regular proceedings, can consider the compromise of an offender with the victim or his legal heirs, as a mitigating circumstance for the purpose of question of sentence in a non-compoundable offence but after final disposal of a criminal matter, Courts cannot assume jurisdiction to re-open the case on merits in collateral proceedings arising out of miscellaneous application."
' Needless to mention that in the present case compromise has been effected in regular proceedings so this Court can consider the compromise as a mitigating circumstance in the matter of quantum of sentence awarded in the non-compoundable offence i.e. Under Section 377 P.P.C. There is also available on record in shape of statement of Mr. Muhammad Abid Awan, learned Magistrate 1st Class/PW. 11 that at one stage the appellant had appeared before him and had made statement confessing his guilt. We are mindful of the fact that an accused confesses his guilt only when he admits that he has committed a shameful act and his conscience pinches him that he deserves punishment and he feels repentant and thereafter he decides to make a confessional statement. This is an extra ordinary extenuating circumstance for taking a lenient view in the matter of sentence under Section 377 P.P.C.. During pendency of the appeal, report was summoned from Superintendent of concerned jail about served/unserved sentence of-the appellant. As per report dated 19.5.2014 of the Superintendent Distt. Jail, Sargodha, the appellant has undergone two years three months and 27 days incarceration. In the peculiar circumstances of the case, we think that the sentence already undergone by the appellant under Section 377 P.P.C.
Would be more than sufficient.
6. Resultantly, Cr. Misc. No. 968-M of 2014 is accepted and on the basis of compromise Cr. Appeal No. 138 of 2014 is allowed to the extent of murder of Muhammad Waqas and the impugned judgment to the extent of conviction and sentences under Section 302(b) P.P.C. Is set aside. Qasim Ijaz, appellant is acquitted of the charge of murder. However, to the extent of offence under Section 377 P.P.C. Since the learned counsel for the appellant has not contested the appeal, and we have found that the act of sodomy was proved by the prosecution through the evidence of Dr. Muhammad Asif, PW.8, as such conviction of the appellant under the said provision of law is maintained. However, since the appellant has been acquitted in the major offence on the basis of compromise as such we take lenient view in awarding punishment under Section 377 P.P.C. And hold that sentence already undergone by him and fine of Rs.20,000/- or in default thereof one month S.I. Is more than sufficient to meet the ends of justice. Cr. Appeal No. 138 of 2014 is disposed of in the above terms.
7. Since the parties have effected a compromise and the legal heirs D of the deceased have waived their right of qisas, as such there is no question of confirmation of sentence of death awarded to the convict by the learned trial Court under Section 302(b) P.P.C. Murder Reference No. 77 of 2014 is answered in negative. Sentence of death is not confirmed.