ABDULLAH BALOCH, J.---This order disposes of Criminal Appeal No. 309 of 2015, filed by the appellants Muhammad Naseem and Muhammad Qasim, both sons of Habibullah, challenging their conviction under section 302(b), Qisas and Diyat Ordinance vide judgment dated 21st September, 2015 (hereinafter "the impugned judgment") passed by the learned Sessions Judge Pishin (hereinafter "the trial Court") in case FIR No. 21/2013 Levies Thana Huramzai and application 'under section 345(2) read with section 561-A, Cr.P.C. along with compromise documents filed by the complainant and the legal heirs of deceased Haji Nizam, for accepting the compromise.
2. The facts of the case are that the appellants were convicted vide impugned judgment by the trial Court under section 302(b), Qisas and Diyat Ordinance and sentenced to suffer R.I for life imprisonment as Tazir with compensation of Rs.20,00,000/- (twenty lakh) to be paid to the legal heirs of deceased as per provisions contained under section 544-A, Cr.P.C. or in default to suffer R.I. for 02 years each, with the benefit of section 382-B, Cr.P.C. for causing murder of Haji Nizam while making firing with fire arms. Both the appellants were tried by the learned trial Court and on conclusion of trial, they were convicted and sentenced as mentioned above.
3. The appellants have challenged their conviction through the instant appeal, while the complainant has filed a Criminal Revision Petition for enhancement of sentence awarded to the appellants, which were admitted for regular hearing, but during pendency of the same, the appellants have entered into compromise with the legal heirs of the deceased Haji Nizam, who have pardoned the appellants. It appears from the record that on 19th December, 2016 the complainant along with his counsel appeared before this Court and verified the factum of compromise deed, thus the appellants were granted conditional bail till realization of compromise deed. The compromise documents have been submitted by the appellants before this Court for acceptance of the same.
4. On 28th March, 2017, the compromise documents were sent to the learned Sessions Judge, Pishin for verification and recording the statements of the legal heirs of the deceased to confirm as to whether the compromise effected between the parties is genuine or otherwise, During inquiry, the Naib Tehsildar Sajjad Gul submitted the list of legal heirs of deceased, which reveals that the deceased had eight legal heirs i.e. widow Bibi Rahima and seven sons and daughters i.e. Bibi Wasi (19-years), Ainuddin (18 years), (Pai Rawana (15 years) Bibi Waseela (13-years), Bibi Sabira (7- years), Bibi Shahida (5-years) and .Bahauddin (4-years). It appears that out of seven sons and daughters only Bibi Wasi and Ainuddin are major, while rest are minors being below the age of 15- years. The court below summoned all the legal heirs of deceased for recording their statements and confirming the genuineness of compromise. Pursuant to which, the statement of complainant Shamsullah (brother of deceased), Mst. Bibi Rahima (widow of deceased), Bibi Wassi (daughter of deceased) and Ainuddin (son of deceased) were recorded as CW-1 to CW-4, who in their statements verified the contents of compromise deed and identified their thumb impressions upon the same. The learned Court below transmitted the compromise documents along with his report to this Court.
5. Learned counsel for appellants stated that the alleged offences are compoundable and the parties outside the Court without any coercion or pressure have compromised the matter and have pardoned the appellants for the sake of Al-Mighty Allah by waiving of their right of Diyat also; that the queries so made by this Court also affirms that the compromise arrived between the parties is genuine and legal and there is no legal bar to acquit the appellants of the charge by accepting the compromise.
6. Learned Deputy Prosecutor General did not oppose the acceptance of the compromise effected between the parties subject to deposit of Diyat amount to the extent of minor legal heirs of deceased, therefore, to their (minor's) extent an order is required to determine the shares of the minors in Diyat amount and also the method/mode of its payment as required by law.
7. Heard the learned counsel and perused the available record. Record reflects that pursuant to the directions of this Court, the learned Sessions Judge Pishin recorded the statements of complainant (brother of deceased) and three legal heirs i.e. widow Bibi Rahima and major daughter Bibi Wasi and major son Ainuddin. Perusal of the statements of the legal heirs of deceased, reveals that they have entered into compromise with the appellants voluntarily and without any coercion and that they have pardoned the appellants in the name of Almighty Allah and do not intend to proceed further against the appellants, besides they have also waived of the right of Diyat. The Court below in its report has also confirmed that the compromise arrived between the parties is genuine. The compromise documents including the pro forma prescribed by the Hon'ble Supreme Court in original have been thumb impressed by the legal heirs, signed as well as thumb impressed by the appellants. The compromise deed is supported by the affidavits of the Legal Heirs of the deceased, thus there is no bar to accept the compromise deed to the extent of major legal heirs of deceased.
8. So far as, the compromise deed to the extent of legal heirs of deceased, who are minors, is concerned, the Hon'ble Supreme Court has already declared that section 309, P.P.C. pertaining to waiver (Afw) and section 310, P.P.C. pertaining to compounding (Sulh) in case of murder are relevant only to cases of Qisas and not to cases of Tazir. Reference is taken to case reported as Abdul Jabbar v. The State and others, 2007 SCM R 1496, wherein the Hon'ble Supreme Court of Pakistan clarified that in case of Tazir the matter of compromise between the parties is governed and regulated by the provisions of section 345(2), Cr.P.C. read with section 338E, P.P.C. In the instant case the appellant had been sentenced under Tazir, therefore, provision of clause (2) of section 338-E, P.P.C. would apply.
9. Since the offence under section 302(b), P.P.C. is compoundable and the parties have entered into compromise, as such, application under section 345(2), Cr.P.C. read with section 561-A, Cr.P.C. is accepted subject to payment of Diyat amount as per section 323, P.P.C. to the extent of minor legal heirs of deceased i.e. namely Pai Rawana (15 years) Bibi Waseela (13-years), Bibi Sabira (7- years), Bibi Shahida (5-years) and Bahauddin (4-years). While giving effect to the compromise, without touching the merits of the case, the impugned judgment dated 21st September, 2015 passed by the learned Sessions Judge Pishin in case FIR No.21/2013 Levies Thana Huramzai is set aside, the appellants Muhammad Naseem and Muhammad Qasim, both sons of Habibullah, are acquitted of the charge under section 302(b), Qisas and Diyat Ordinance, 1979 subject to payment of Diyat amount to the extent of minors. It is further 'directed that on receiving of the amount of Diyat it shall remain deposited in the National Savings Pakistan in the names of the minors in equal shares un-till they attain majority. The learned Sessions Judge Pishin is directed to ensure the deposit of Diyat amount to the extent of minors by the appellants after determination of shares as per prevailing value of Diyat amount fixed by the Federal Government Copy of this judgment be sent to learned Sessions Judge Pishin.
The appeal stands disposed of in the above terms.
Consequent to the above, the Criminal Revision Petition being not pressed is dismissed as withdrawn.