Sadaqat Ali Khan, J.--Umar Hayat appellant along with Shafqat Ali (since dead), Muhammad Asghar co-convict, Muhammad Ashraf (since acquitted) and Azhar Mehmood (since acquitted) was tried by Additional Sessions Judge, Jhelum in case FIR No, 354 dated 18.9.2003 under Sections 302/34, PPC Police Station, Dina, District Jhelum. The learned trial Court after conclusion of the trial convicted appellants Umar Hayat, Shafqat Ali and Muhammad Asghar and acquitted Muhammad Ashraf and Azhar Mehmood co-accused vide judgment dated 4.5.2009 as under:- "(i) Umar Hayat was convicted under Section 302(b), PPC and sentenced to Death as Tazir for committing the Qatl-i-Amd of Muhammad Ashraf Mehmood deceased in furtherance of common intention along with compensation Rs, 1,00,000/-payable to the legal heirs of the deceased under Section 544-A, Cr.P.C. And in default thereof further undergo six months S.I.
(ii) Shafqat Ali was convicted under Section 302(b), PPC and sentenced to Death as Tazir for committing the Qatl-i-Amd of Muhammad Ashraf Mehmood deceased in furtherance of common intention along with compensation Rs, 1,00,000/- payable to the legal heirs of the deceased under Section 544-A, Cr.P.C. And in default thereof further undergo six months S.I.
(iii) Muhammad Asghar was convicted under Section 302(b), PPC and sentenced to Death as Tazir for committing the Qatl-i-Amd of Muhammad Ashraf Mehmood deceased in furtherance of common intention along with compensation Rs, 1,00,000/-payable to the legal heirs of the deceased under Section 544-A, Cr.P.C. And in default thereof further undergo six months SI".
2. Whereas their co-accused namely Muhammad Ashraf and Azhar Mehmood have been acquitted by the trial Court. Shafqat Ali and Umar Hayat appellants filed the instant appeal against their conviction and sentences.
3. Shafqat Ali appellant had died on 7.2.2011 and his appeal was disposed of vide order dated 12.3.2014 passed by this Court which is hereby reproduced:- "The Appellant No, 2 Shafqat Ali has died on 7.2.2011 according to the report of the Superintendent Jail, Jhelum dated 7.12.2013. Therefore, the appeal to his extent stands abated. Since the convict has died during the pendency of Murder Reference as such the same is disposed of."
4. During the pendency of instant appeal and Murder Reference No, 23-RWP of 2009 Raja Azhar Mehmood father of Muhammad Ashraf deceased moved CM No, 2031-M of 2015 under Section 345, Cr.P.C. To effectuate the compromise arrived at between the legal heirs of Muhammad Ashraf deceased and the appellant Umar Hayat only.
5. Vide order dated 26.05.2015 passed by this Court, the matter of compromise was referred to the learned Sessions Judge, Jhelum for submission of his report with regard to genuineness and voluntary nature of the above said compromise with further direction that the interest of minor, if any; shall also be safeguarded.
6. In pursuant of the above said order of this Court, the learned Sessions Judge, Jhelum has submitted his report dated 09.06.2015 which is hereby reproduced: "I have the honour to refer to your honour's Letter No, 037580 dated 27.5.2015, on the above noted subject which was received through post on 28.5.2015 and in compliance with the order of the Hon'ble Lahore High Court, I submit my report as under:-
2. A case FIR No, 354 dated 18.9.2003 was registered u/Ss. 302 & 34, PPC at P.S. Di, Tehsil Dina, District Jhelum, at the instance of Anwar Mahmood Kayani.
3. The trial of the above mentioned case was conducted by learned Addl. Sessions Judge, Jhelum and on conclusion of the trial, Umer Hayat, Asghar Ali and Shafaqat Ali were convicted and sentenced as follows:-
4. The convict Umer Hayat, by way of Criminal Appeal No, 138 of 2009, had brought under attack the judgment rendered on 4.5.2009 by learned Addl. Sessions Judge, Jhelum. Name Sentence Umer HayatDeath. Compensation of Rs, 100000/- payable to the legal heir of the deceased. Asghar Ali Death. Compensation of Rs, 100000/- payable to the legal heir of the deceased. Shafqat Ali Death. Compensation of Rs, 100000/-payable to the legal heir of the deceased
5. Raja Azhar Mahmood, father of the deceased moved an application u/S. 345 sub-section (5), Cr.P.C. On behalf of legal heir of the deceased Muhammad Ashraf before the Hon'ble Lahore High Court for allowing the convict for effecting compromise with the legal heir of the deceased.
6. Vide order dated 26.5.2015, Hon'ble Lahore High Court, Lahore directed this Court as follows: "Let a copy of this petition, along with its annexures be sent to the learned Sessions Judge, Jhelum with a direction to record the statements of the complainant and major legal heir of the deceased, verifying genuineness of the compromise between the parties with special, emphasis to protect/safeguard the interest of the minors, if any and submit report in this regard so as to reach this Court within two weeks."
7. In compliance with the order dated 26.5.2015, notices were issued to the Tehsildar, as well as SHO P.S. Dina to submit list of legal heirs of the deceased Muhammad Ashraf. As per reports and statements of Sheikh Muhammad Jamil Tehsildar, Jhelum as well as Tariq Mahmood S.I/Acting SHO, P.S. Dina, the legal heirs of the deceased Muhammad Ashraf are as follows: ' Raja Azhar Mahmood (father of the deceased) Mst. Razia Begum (mother of the deceased).
' The deceased Muhammad Ashraf was an unmarried person and Raja Azhar Mahmood and Mst.Razia Begum are the only legal heirs/Walis of the deceased and they got recorded their statements as follows:-- 'Statement of Raja Azhar Mahmood (father)
My real son Muhammad Ashraf was murdered and a case FIR No, 354/2003 dated 18.9.2003 was registered u/Ss. 302 & 34, PPC at P.S. Dina, Tehsil Dina, District, Jhelum at the instance of Raja Anwar Mahmood (brother of deceased).
2. The trial of the case was conducted by learned Addl: Sessions Judge, Jhelum and on conclusion of the trial, the accused Umer Hayat was convicted vide judgment dated 4.5.2009. The appeal filed by convict Umer Hayat is pending before the Hon'ble Lahore High Court, Lahore. Now a compromise has been effected between the parties.
3. The deceased Muhammad Ashraf was unmarried and his legal heirs are as follows:
(i) Raja Azhar Mahmood s/o Raja Sajawal (father of the deceased).
(ii) Mst. Razia Begum wife of Raja Azhar Mahmood (mother of the deceased).
4. I, Raia Azhar Mahmood, being_ an adult, sane, legal heir (Wali) of Muhammad Ashraf waive my right of Qisas and I do not claim any Diyat in this regard. I am giving this statement with my own volition, free consent and without any coercion. I have forgiven convict Umer Hayat in the name of Allah Almighty and have no objection on his acquittal from the case in hand. In this regard, I have already submitted my affidavit in Lahore High Court, Lahore.
' On 4.6.2015, Mst. Razia Begum (mother of the deceased) stated that she had not compounded the offence with coniyict Umer Hayat. Whereas on 8.6.2015, she recorded her statement with regard to compounding of offence with convict Umer Hayat. Her statement dated 8.6.2015 is reproduced as under:-- 'Statement of Mst. Razia Besum (mother) recorded on 8.6.2015. My real son Muhammad Ashraf was murdered and a case FIR No, 354/2003 dated 18.9.2003 was registered u/Ss. 302 & 34, PPC at P.S. Dina, Tehsil' Dina, District, Jhelum at the instance of Raja Anwar Mahmood (brother of deceased).
2. The trial of the case was conducted by learned Addl: Sessions Judge, Jhelum and on conclusion of the trial, the accused Umer Hayat was convicted vide judgment dated 4.5.2009. The appeal filed by convict Umer Hayat is pending before the Hon'ble Lahore High Court, Lahore, Now a compromise has been effected between the parties.
3. The deceased Muhammad Ashraf was unmarried and his legal heirs are as follows:--
(i) Raja Azhar Mahmood s/o Raja Sajawal (father of the deceased).
(ii) Mst. Razia Begum wife of Raja Azhar Mahmood (motherbf the deceased).
4. I, Mst.Razia Begum, being an adult, sane, legal heir (Wali) of Muhammad Ashraf waive my right of Qisas and I do not claim any Diyat in this regard. I am giving this statement with my own volition, free consent and without any coercion. I have forgiven convict Umer Hayat in the name of Allah Almighty and have no objection on his acquittal from the case in hand. In this regard, I have already submitted my affidavit in Lahore High Court, Lahore.
8. Both the legal heirs of the deceased have compounded 'Qatl-i-Amd'/murder of their son namely 'Muhammad Ashraf with convict Umer Hayat and have waived their right of Qisas and they have not claimed any Diyat. The legal heirs of the deceased were duly identified and in my considered view, compromise effected between the parties is genuine and necessary formalities have been fulfilled in letter and spirit.
9. The report is placed before your kind office subject to the satisfaction and approval of the Hon 'ble High Court."
8. As per report Muhammad Ashraf deceased was survived by his following legal heirs:-- 1 Raja Azhar Mahmood Father 2 Mst. Razia Begum Mother
8. Statements of all the above noted major legal heirs of the deceased (Muhammad Ashraf) have been recorded by the learned Sessions Judge, Jhelum. All the legal heirs deposed that they had entered into a compromise with the appellant Umar Hayat and they have forgiven him in the name of Almighty Allah without any duress, coercion and influence and they had no objection if he is acquitted. The learned Sessions Judge, Jhelum in his report reproduced above further submitted that Muhammad Ashraf deceased was unmarried and his parents i.e, Raja Azhar Mehmood (father) and Mst. Razia Begum (mother) are the only legal heirs.
9. It is important to note here that on 1.7.2015 Mst. Razia Begum along with her daughters (Mehmooda Begum and Fehmida 'Azhar) appeared before this Court and denied the factum of compromise, thereafter, she died and on the direction of this Court learned Sessions Judge, Jhelum has submitted second report dated 19.4.2016 regarding compromise which is hereby reproduced:- "I have the honour to refer to your honour's Letter No, 27257/Criminal-I dated 7.4.2016 on the above noted subject and in compliance with the order of Mr. Justice Sadaqat Ali Khan and Mr. Erum Sajjad Gull, Hon'ble Judges of Lahore High Court, Lahore, notices were issued to the Tehsildar concerned as well as SHO Police Station Dina to submit list of legal heirs of the deceased Mst. Razia Begum. As per reports and statements of Ashfaq Ahmad, Naib Tehsildar Jhelum and Muhammad Afzal ASI, Police Station Dina, District Jhelum, the legal heirs of deceased Mst. Razia Begum are as follows:--
(i) Raja Azhar Mahmood s/o Raja Sajawal (husband of the deceased).
(ii) Raja Anwar Mahmood son of Raja Azhar Mahmood (Major son of the deceased).
(iii) Mst. Mehmooda Begum daughter of Raja Azhar Mahmood (Major daughter of the deceased).
(iv) Mst. Maqsooda Azhar daughter of Raja Azhar Mahmood (Major daughter of the deceased).
(v) Mst. Fehmida Azhar daughter of Raja Azhar Mahmood (major daughter of the deceased).
' The statements of above mentioned legal heirs of the deceased namely Raja Azhar Mahmood (husband) Raja Anwar Mahmood (major son), Mst. Mehmooda Begum (major daughter), Mst.
Maqsooda Azhar (major daughter) and Mst. Fehmida Azhar (major daughter) have been recorded separately and as per their statements, there is no other legal heir of deceased Mst. Razia Begum.
They, have further stated that Mst. Razia Begum had already effeted compromise with the convict Umer Hayat in her life time and in continuation of that, they being legal heirs of Mst. Raiia Begum have pardoned the convict Umer Hayat after settlement of compensation and receiving the same out of the Court and have no objection on the acquittal of said convict. In the light of statements of legal heirs of the deceased, in my considered view, compromise effected between the parties in genuine and necessary formalities have been fulfilled in letter and spirit.
3. The report is placed before your kind office as desired please".
10. Today, Raja Azhar Mahmood father of Muhammad Ashraf deceased present in person and Mr. Asif Mehmood Advocate, learned counsel for Mehmooda Begum and Fehmida Azhar sisters of Muhammad Ashraf deceased have confirmed the compromise being genuine. The learned Deputy Prosecutor General has also endorsed their statements.
11. In view of the above, we find that compromise has been effected between the parties. All the above stated legal heirs of Muhammad Ashraf (deceased) have waived their rights of Qisas and forgiven Umar Hayat appellant in the name of Allah Almighty. We allow this compromise so that the parties may end their future hostilities and live peacefully and their act shall create harmony and tranquility in society generally. Resultantly, by placing reliance on the case titled "Jaffar Ali alias Jaffari Vs. The State" (2012 SCM R 606), the appeal filed by Umar Hayat appellant is accepted on the basis of compromise. The conviction and sentence recorded under Sections 302(b), PPC against appellant Umar Hayat by the trial Court through judgment dated 4.5.2009 are set aside to his extent and he is acquitted in case FIR No, 354 dated 18.9.2003 under Sections 302/34, PPC Police Station, Dina, District Jhelum and he is directed to be released forthwith if not required in any other case.
12. Murder Reference No, 23 of 2009 to the extent of Umar Hayat appellant is answered in NEGATIVE and death sentence of Umar Hayat appellant is NOT CONFIRMED.