' MALIK HAQ NAWAZ, J.--Appellant/convict Haq Nawaz son of Malik Miskeen through this appeal has called in question the judgment of learned Sessions Judge Diamer dated 06.04.2014, whereby he was convicted under Section 311, P.P.C. And sentenced to 14 years R.I.
2. The brief facts of the case are that on 28.4.2013 complainant Khurshid-urRahman (examined as PW-1) lodged a report at Police Station Gonar Farm stating therein that on the fateful day at Asar prayer time, his real brother Ajeeb-urRahman was watering the field, when appellant Haq Nawaz son of Muhammad Miskeen resident of Pathan Mohallah came and asked my brother, that the flow of water has slow down and asked him to proceed to the water site. After taking the deceased near to his house the appellant killed the deceased by opening fire shots with .30 bore pistol and after murdering deceased, the appellant also killed his Sister Mst. Zar Begum. As per complainant the occurrence was witnessed by his father Rehmat Khan and one Rehmat Faqir. The motive was stated to be the extra marital relations between the two deceased.
3. When the' case came up for trial before the learned trial Court Diamer and the appellant was summoned to face the trial. On 3.7.2013 the legal heirs of deceased Ajab-ur-Rehman and Mst. Zar Begum appeared before the trial Court and got recorded their statements that they have granted pardon to the appellant and have got no objection if he is relieved from the criminal liability of murder of both the deceased.
4. On 8.10.2013, the learned trial Court framed the charge under section 311, P.P.C. And summoned the P.Ws. For evidence. The statements of ten. P.Ws. Were recorded and after closure of prosecution evidence the appellant was examined under section 342, Cr.P.C., on 17.9.2014.
5. On 06.11.2014 arguments were heard and the case was fixed for announcement of orders for 15.11.2014 as reflected in order sheet of the trial Court dated 6.11.2014, but on our scrutiny the date of announcement of judgment is not mentioned anywhere and it could only be seen on pages 1, 2 and 3 beneath the initial of the presiding judge.
6. The factor which influenced the trial Judge in convicting the appellant under section 311, P.P.C. Is reproduced as under:--
7. From the perusal of prosecution evidence it is on record that deceased Ajeeb-ur-Rahman was age about 14 years and Mst. Zar Begum age about 12 years. It is on record admitted that both the families are relatives inter se and after a compromise affected all the PWs resiled from their statements. However it is on record proved that accused by accepting the order dated 3.7.2014 has accepted his guilt. He has not challenged the order dated 3.7.2014 and at present order dated 3.7.2014 has attained its finality. Statement of PW2 has fixed the liability of murder of two souls against the accused. Statement of PW10 is also relevant. PW10 has categorically alleged that accused in his presence admitted the murder of deceased Ajeeb-ur-Rahman and Mst. Zar Begum. It is in the statement of PW10 Rehmat Khan that on the day of occurrence he was present in the village and .He was present near the place of occurrence. Accused in his statement did not take any plausible defence to rebut the prosecution case despite the fact that he was charged for the murder of his own sister. Both the deceased were minors and accused has murdered minors in the name of honour."
7. The learned counsel for the appellant vehemently contended that there was no alternate option left with the trial Judge to acquit the accused, after composition of the offence by the legal heirs of both the deceased. Per learned counsel the trial Court was under legal obligation to order acquittal in terms of Section 345(6), Cr.P.C, and in the peculiar circumstances of the instant case the conviction under section 311, P.P.C. Has led to a serious miscarriage of justice as the provisions of Section 311, P.P.C. Have been grossly misinterpreted and misapplied, which added into the miseries of the accused, who had already undergone the rigorous of long and protracted trial.
8. On the other hand the learned Addl. A.G. Halfheartedly supported the judgment, but, when the learned Addl. A.G. Was confronted with the bare reading of Section 311, P.P.C., he was unable to defend the judgment, which we unanimously feel was a patently illegal and unwarranted judgment.
9. Section 311, P. P.0 . Provides punishment by way of Tazir even after waiver or .Compounding of right of Qisas in Qatl-e-Amd. For the purpose of ready reference Section 311, P. P. C . Is reproduced as under:- S.
311. TWzir after waiver of compounding of right of qisas to gall-e-amd. Notwithstanding anything contained in section 309 or section 310 [where all the walis do not waive or compound the right of qisas or [if] the principle of fasad-fil-arz [is attracted]) the Court may, [***] having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with [death or imprisonment for life, or] imprisonment of either description for a term-which may extend to [fourteen] years as ta'zir, 14[provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than ten years.] 15[Explanation.--- For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal. Or shocking manner in which the offence has been committed which is outrageous to the public conscience 16[or the offence relates to honour crime], or if the offender is considered a potential danger to the community, 17[or if the offence has been committed in the name or on the pretext of honour]]
10. A plain reading of section 311, P.P.C. And its interpretation leads to the conclusion that the said provision of law only applies in cases of Qatl-e-Amd liable to Qisas, after waiver under section 309 or 310, P. P . C . Respectively. For application and conviction of an accused under section 311, P.P.C., is only possible if the pre-requisites given in the explanation of section 311, P.P.C. Are fulfilled. The plain interpretation for application of the section would be that the accused could be visited with liability of section 311, P.P.C. Must be a previous convict, habitual or professional criminal or the murder would have been committed in a brutal manner.
11. The wisdom of law givers in enacting Section 311, P.P.C. Is very clear and if even after composition under sections 309 and 310, P.P.C., the accused are convicted, then the very object of section 345(2), Cr.P.C, wherein a table of composition of offences affecting the human body is provided will become redundant.
12. On our repeated queries the learned Addl. A.G. Could not point out a single piece of evidence, which may bring the case of the appellant in any of disqualifying criteria laid down for attraction of section 311, P. P.0 .
13. In the case in hand the parents of both the deceased who were Wali and legal heirs have pardoned the appellant without any fear or favour and have also waived their right to claim any compensation from the appellant. As evident from the FIR and evidence recorded in the Court, the parties are related inter se and living in the same vicinity and they affected compromise in the interest of better relations of the parties in future. The learned Court instead of encouraging the compromise had taken the compromise as an incriminating evidence against the appellant as born out from his judgment. It may be clarified that compromise in a criminal case cannot be taken as an incriminating evidence.
14. The learned trial Court tried to search the guilt of the appellant with the help of microscope, which is not permissible in Criminal Jurisprudence and the misinterpretation of law led to the trial Court, who reached on a wrong conclusion.
15. The Courts while delivering judgments must know that justice is considered to be an attribute of God and performance of dispensation of justice is a religious duty which demands utmost care on the part of the Courts to be extra vigilant, while passing a judgment of acquittal or conviction.
16. People are losing confidence in the Courts only because of the wrong decisions and the trial Court must remember that misapplication or misinterpretation of law leads to erroneous decisions and every erroneous decision is determinantal for reputation of judicature. The statutes are always enacted for the benefit of the general public and they should be interpreted in a manner to advance justice and suppress mischief, which is lacking in lc the case in hand.
17. We have observed with the great pain that in the instant case both the families have suffered because of an unwarranted and illegal judgment of the trial Court despite of a genuine and volunteer compromise, the appellant has been convicted, which was not in accordance with the spirit of law. The Courts of the Country are bound to apply the law as it exists and not as it should have been. The trial Court has travelled far beyond its jurisdiction in convicting the appellant and recorded conviction for some extraneous consideration, not expected from a Sessions Judge.
18. The result of above discussion is that Cr. Appeal bearing No,51/2014 is allowed and the convict/appellant is acquitted from the charges leveled against him. He shall be released forthwith if not required to be detained in any other case.
19. Crime weapon 30 bore pistol bearing body No, CAL 7-63 (30) Automatic pistol made in Pakistan is confiscated in favour of the State.