' This application, under section 561-A, Cr. P. C. Has been filed to quash the order passed by the Sessions Judge, Mirpur on 31st March, 1977 whereby the petitioner was found guilty and was convicted for the commission of offence under sections 302, 307 and 323, Penal Code and was sentenced to undergo death penalty.
2. The petitioner challenged his conviction recorded by the Sessions Judge in the High Court but his appeal was rejected through order, dated May 13, 1979 and the appeal taken to the Supreme Court also failed on January 30, 1983.
3. During the pendency of the case, the Government introduced the Islamic Penal Laws Act of 1974 and the heirs of the deceased were given the right to pardon the guilt of the accused and avail of this chance, the brother of the petitioner approached the heirs of the deceased (Mst. Khurshid Begum) who were kind enough to forgive the guilt of the petitioner and got their statements recorded in this Court on August 6, 1984. The petitioner prayed that as his guilt has been pardoned by the heirs of the deceased, therefore, the order of conviction cannot be executed and he cannot be kept in custody any more, therefore, it may be quashed.
4. The learned counsel for the respondent accepted the correctness of the plea of the petitioner and stated that when the heirs of the deceased have pardoned the guilt of the petitioner, the order, whereby the petitioner was convicted to face the gallows, cannot be executed.
5. I have considered the points raised at the Bar and have also studied the record of the case.
6. The Azad Government of the State of Jammu and Kashmir introduced the Islamic Penal Laws Act of 1974 whereby the person who is charged with the commission of the offence of murder, is liable to be tried under the provisions of the said Act and the heirs of the deceased have also been given the right and powers to pardon the guilt of the accused person and in exercise of those powers, the father and mother of the deceased (Mt. Khurshid Begum), moved an application in this Court to the effect that they have pardoned the guilt of the petitioner and in support of the said application, got their statements recorded. Although they admitted that they have forgiven the guilt of the petitioner to seek the mercy of GOD ALMIGHTY, yet they have also received a sum of Rs, 60,000 as `Diyyat' money. The deceased was issueless and was survived by father and mother and the petitioner was also her heir as husband, therefore, keeping in view the Verse No, 178 Surah-eBaqra Al-Qur'an, the heirs of the deceased have a right to forgive the guilt of the petitioner and pardon him and when they have compromised the matter they are not permitted to resile and back out from it and keeping in view the said verse of Surah-e-Baqra Al-Qur'an, the petitioner cannot be convicted and for that matter, cannot be executed for the offence of murder. But in this case, the point needs further probe because neither the petitioner was charged under the provisions of the Islamic Penal Laws Act, 1974 nor he was tried by the Shariat Court. Furthermore, his conviction was upheld by the last Court of appeal of the country after examining the legality and propriety of his conviction recorded by the Sessions Judge, Mirpur, therefore, the following two points require determination, namely:-
(i) Whether the person who was tried under section 302 of the Penal Code and was found guilty, can take the benefit of the provisions of the Islamic Penal Laws Act, 1974, and
(ii) whether the petitioner's conviction which was upheld by the Supreme Court can be quashed by this Court in exercise of the powers vested in it under section 561-A, Cr. P. C.
'7. The Almighty Allah in his Holy Book the Holy Qur'an in Verse No, 178 Surah-e-Baqra, commanded:- {{URDU TEXT}}
8. In this verse the Almighty Allah commands that the murderer shall be dealt with in the same manner as he dealt with the murdered man but in case the heirs of the deceased forgive the murderer or take the ransom money, it is obligatory on them not to resale and back out because it is the concession which has been given by The Allah Almighty and keeping in view this command, the heirs of the deceased who have received the ransom money on behalf of the petitioner and who have pardoned the petitioner for the commission of murder of their daughter, are bound to keep up the compromise and when they have pardoned the guilt of the petitioner whether the execution of the order, whereby can be made is required to be resolved.
9. The Holy Qur'an says that after the matter was settled, nobody should exceed and whoever exceeds shall receive the severest punishment.
10. In the present case, the parties have compromised and th heirs of the deceased woman are not desirous that the petitioner may be sentenced to death and in this view of the matter, the Court, I think, is duty bound to act according to the compromise arrived at by th parties and if the Court rejects the compromise and order the execution of the order of sentence, I think, it will be contravening the provision of the Holy Qur'an. The objection that the petitioner was tried under the ordinary law and not under the Islamic Penal Laws Act of 1974, will not stand in the way to achieve the object of the command of the GOD ALMIGHTY.
11. The second point which requires resolve is that when the conviction of the petitioner is upheld by the Supreme Court, whether the High Court has the powers to quash the order passed by the Supreme Court.
12. The petitioner was convicted by the Sessions Court and his conviction was upheld by this Court and in turn by Supreme Court when the appeals were taken to those Court, therefore, it would mean that order of conviction which is required to be quashed, is the other of Sessions Judge and not the Courts of appeal and this Court, keeping in view the powers conferred on it by section 561- A, Cr. P. C. And to achieve its object that the Court should pass an order to secure the ends of justice, has enough powers to pass such order, therefore, I think, the order,' whereby the petitioner was convicted and was sentenced to be hanged till death, is needed to be quashed.
13. In the aforesaid view of the matter, in exercise of the power vested in this Court under section 561-A, Cr. P. C. I hereby quash the order of conviction of the petitioner and order that in view of the forgiveness given to the petitioner by the heirs of Mst. Khurshid Begum (deceased) the petitioner cannot be sentenced to be hanged till death and he is entitled to be acquitted of the charge of offence of murder. The application stands disposed of accordingly.