' Vide F.I.R. No, 376 Police Station Badhber, District Peshawar Dated 5-11-90 Zulfiqar alias Bhutto and others were charged for the murder of one Gohar Khan brother of the accused in F.I.R. No,377 by firing at 6 0 clock in the morning. Vide F.I.R. No, 377 Police Station Badhber, District Peshawar dated 5-11-1990 Mst. Mashooqa complainant charged Dawar, Iqbal and Rahat for the murder of her husband Sarfaraz uncle of Zulfiqar alias Bhutto accused in F.1.R. No,376 by firing at him at 6-30 O'clock in the morning. Dawar and Iqbal petitioners surrendered their arrest while Rahat remained in abscondence. The elders of Jirga effected a compromise between the parties. Accordingly Dawar and Iqbal accused applied for bail, inter alia, on the ground of compromise. The Magistrate and the Sessions Judge both disallowed the bail as they were not satisfied with the genuineness of the compromise. Accused-petitioners approached this Court for bail, inter alia, on the ground of compromise. They brought alongwith them the widow of the deceased and her elder son Sajjad.
This Court recorded her statement on oath. She reported that the legal heirs of the deceased are a mother Mst. Guiana, widow herself, two sons Sajjad and Mustajab and three daughters Nargas, Nusrat and Dilfaraja, She stated that the accused have agreed to pay Shari Diyat in the sum of Rs,1,70,610 to them and that they were not interested in their further prosecution and accordingly prayed for their release on bail.
2. The offence of `Qatl-i-Amad' has now been made compoundable by the heirs of the victim with the permission of the Court before which the prosecution is pending. The offence, however, remains non-bailable and is also covered by the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Anyhow the detailed statement of widow of the deceased accompanied by her elder son has made this Court satisfied about the genuineness and voluntariness of the compromise as against the payment of Shari Diyat in the sum of Rs,1,70,610. Qisas for `Qatl-i-Amad' is not enforceable when any `Wall' voluntarily and without duress waives the right of `Qisas' or compounds the right of `Qisas' (section 307, P.P.C.). Under section 310, P.P.C. a Wale of a minor heir may compound the right of `Qisas' on behalf of such minor heir subject to the value of `13adli Sula' being not less than the value of Diyat. Herein the 'Wall' of the minors has compounded the right of `Qisas' on behalf of the minors as well on her own behalf against the payment of Shari Diyat which comes to Rs,1,70,610.
3. Sharia treats the Hudood offences and those involving `Qisas' and `Diyat' as crimes affecting the foundation of the society. However, there has been given a choice to the victim and his heirs to forgo the punishment of `Qisas' while such a choice has not been given in case of Hudood offences because such offences are directly harmful to the society. On the other hand, offences involving `Qisas' and `Diyat' directly affect the individuals initially and for that reason the victim and his lawful heirs have the right to forgive the offender without compensation or blood money. True, pardoning or remission does not mean that the person in authority cannot award penal punishment and section 311, P.P.C. Has also, therefore, vested a power in the Court to punish an offender upto 10 years' imprisonment as `Tazie in its discretion having regard to the facts and circumstances of the case even if the right of `Qisas' has been waived or compounded. In fact, the Court shall exercise its discretion under section 311, P.P.C. In awarding l'azie punishment in a situation where the commission of the offence has simultaneously posed a threat to collective peace and tranquillity.
Otherwise Sharia has given the right to the victim or his lawful heirs to forgive and compound the right of `Qisas' and thus to condone the offence in order to do away with the feuds and putting an end to animosities and to restore peace and tranquillity amongst the warring factions in particular and the society in general.
4. Herein the right of `Qisas' has been compounded against `Badli Sula' in the sum of Shari Diyat equivalent to Rs,1,70,610. The Court has still, no doubt, the power to impose a `Tazie punishment having regard to the facts and circumstances of the cases. However, the statements of the parties recorded in the Court have been prima facie found spelling out the genuineness and voluntariness of the compromise effected between the parties in their overall interests. Thus in order to facilitate the ends of justice this Court would allow bail to the accused-petitioners subject to their depositing the Shari Diyat in the sum of Rs,1,70,610 in the trial Court as security subsequently payable to the Walis' of the deceased at the trial and decision. They shall further furnish bonds in the sum of Rs,2,00,000 with two sureties in the like amount each to the satisfaction of the trial Court for their attendance in the Court to face the trial.