ALI BAQAR NAJAFI, J. Through this application under section 345, Cr.P.C., the petitioners, Shahbaz son of Gul Muhammad Mohal and Daim son of Lal have sought compromise in appeal filed by them.
2. The petitioners were convicted by the learned Additional Sessions Judge, Kamalia, as under:- "Under sections 148/149 read with section 302(b), P.P.C.
Sentenced to life imprisonment each.
Under section 324, P.P.C.
Sentenced to 05 years' R.I. each.
Under section 337-A(i), P.P.C.
Sentenced to pay Daman Rs.10,000/- each.
Under section 337-D, P.P.C.
Sentenced to pay Arsh each according to Diyat money as was on 1st July, 2008.
All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to them."
3. A report was requisitioned from the court of learned Additional Sessions Judge, Kamalia which was submitted on 24.11.2021 according to which none of the legal heirs of Muhammad Sarwar (deceased) bad contested the compromise but the learned Prosecutor has raised the objection that the compromise could not be effected to the extent of the minors without payment to them of the differential amount between the payable Diyat in the year 2012 and what is payable now when the compromise is being effected between the other legal heirs of Muhammad Sarwar (deceased) notwithstanding the fact that they had earlier pardoned Muhammad Mansha son of Hayat, Muhammad Mansha son of Jalal din and Khurshid the other acquitted persons by receiving the Diyat of Rs.22,33,500 in 2012. He submits that to watch the interest of the minors is the responsibility of this Court and, therefore, the compromise be accepted conditionally.
4. Arguments heard. File perused.
5. Admittedly, on 22.10.2012, this Court had already accepted the compromise with the legal heirs of Muhammad Sarwar (deceased) while deciding Criminal Appeal No.885/2010 (Mohammad Mansha and others v. The State) in which Mohammad Mansha son of Hayat, Muhammad Mansha son of Jalal Din and Khurshid son of Shahab Din have been acquitted under section 302, P.P.C., while maintaining the sentence under sections 324 and 337-A(i), P.P.C. since none of the injured witnesses appeared before the court to compound the offence, therefore, maintained the sentence to their extent but reduced their sentence to what they had already undergone. It was also concluded by this Court that Mst. Naseem Akhtar, the mother of Arooj Bibi, Shazia Bibi and Attiq-ur-Rehman minor daughters and son of the deceased Muhammad Sarwar had received Rs.22,33,500/- as share of Diayat amount of the minors and invested in Defence Saving Certificates.
The State, therefore, had raised no objection at that time.
6. Meanwhile, the present Criminal Appeal No.917/2010 filed by Ali Sher alias Sheeri son of Lal Din, Daim son of Lal Din and Shahbaz son of Gul Muhammad Mohal remained pending and through this application under section 345, Cr.P.C, prayer is made to also effect the compromise between Daim and Shahbaz since Ali Sher alias Sheeri who was granted death sentence had died in jail; a fact not disputed by the prosecution. A report on compromise, therefore, was requisitioned from the learned trial court and on 24.11.2021 it was submitted according to which the legal heirs of Muhammad Sarwar alias Muhammad Masroor (deceased) were summoned and as per report of the concerned SHO and Revenue Officer, Nasim Akhtar, widow and Shazia, Arooj and Attique-ur- Rehman, minors are the surviving legal heirs, since Muhammad Ishaque and Sifat Elahi, both parents of deceased had died after the said compromise with other acquitted persons. According to the statement of natural guardian of the minors before the learned court of Additional Sessions Judge, she raised no objection if petitioners/appellants Daim and Shahbaz are also acquitted of charges, since she had already received amount of Rs.22,35,500/-in the shape of Defence Saving Certificates as Diyat on behalf of the minors of the deceased in the year 2012. Even Abdul Ghafoor and Noor Muhammad injured have recorded their statements in the said court that they also had compounded the offence and that they have forgiven the appellants/petitioners in the name of Allah Almighty and waived their right of Qisas or recover Diyat/Daman or Arsh from them, they, therefore, raised no objection on their acquittal.
7. The question raised by the learned Prosecutor is (1) whether it is not a new compromise and (ii) whether the legal heirs can get the Diyat of minors over and above the amount already received by them now notwithstanding the compromise effected in 2012. Both are answered in negative for the following reasons:- i) Firstly, if the Diyat is not a punishment, its enhancement for the legal heirs is not their legal right after when it has already been exercised by them drawing all the amount of Diyat to their share. No new right had accrued to them. ii) Secondly, the only exception through which a compromise can be recalled is that it was forcefully effected as free consent is the main ingredient of such ground which is apparently missing. The guiding principle for the court to effect such compromise is laid down in judgment reported as Abdul Ghafoor and 3 others v. The State (1992 SCMR 1218) and, therefore, its extracts at page 1232 is reproduced as under:- "A note of caution warning is for the parties concerned that any doubt with regard to the free will of the parties in entering moo a compromise in cases like the present one shall have to be resolved against the acceptance of the compromise; because, it is not a question of the punishment of an accused as a result of the compromise that benefit of a doubt may be given to the accused. On the contrary, it is an accused/convict-who seeks the favour of the other party. And if he is unable to satisfy the other party on all questions relating to compromise (which becomes a contract) that it is free from blemish and doubt, it cannot be accepted. Similarly, if the Court has any doubt whatsoever that the compromise is tainted with pressure, coercion, undue influence, blackmail, extortion or similar other infirmities, it shall have to be rejected without much of arguments or discussion. Because only that compromise would qualify for acceptance which is above every blemish, mild or strong." iii) Thirdly, once a compromise always a compromise, therefore, it cannot be rescinded by any strange interpretation of law in order to proactively protect the minors since the interest of minors cannot be watched over and above their entitlement t regardless of the fact that offence of murder was committed by more than one person and convicted though may have different financial status. In the absence of any documentary evidence to prove the financial status, no such finding can be given. Reliance is placed upon Safdar Ali and others v. The State and another (PLD 1991 SC 202). The relevant extract of page 209 is reproduced as under:- "The last question which requires consideration namely whether the diyat of Rs.1,71,000/- can be regarded as an 'equitable and fair badal-i-sulah for compounding the offence of Qatl-i-amd committed by the three offenders may now be taken up. In this case the victim was a single individual and despite the fact that three person were involved in his murder is hardly of much importance when the heirs of the victim are satisfied with the amount of the diyat being paid to them. We too are of the opinion that keeping in view the financial position of the convicts as also of the heirs of the victim the amount of diyat is quite appropriate. We consider the amount of Rs.1,71,000/- is a fair badal-i-sulah for compounding the offence." iv) Fourthly, the present one is not a new compromise but reaffirmation of the old compromise entered with other accused persons the benefit of which is also extended to the present appellants now, therefore, the payment of differential amount to the minor is not legally permissible.
8. In this view of the matter, the application is accepted as a result of which the appeal filed by the appellants, namely, Shahbaz son of Gul Muhammad Mohal and Daim son of Lal, is allowed and they are acquitted of the charges levelled against them. They be released from jail if they are not required in any other case.