' SARDAR MUHAMMAD DOGAR, J.---Ghulam Rasool was murdered on 6-1-1987 at 9-00 a.m. In the Chowk of village Mong near the house of Ali Asghar Shah. F.I.R. Was lodged on the same day by Muhammad Rafique, his cousin, at 10-15 a.m. Against Muhammad Yaqub, Mahboob and Muhammad Aslam real brotheRs, It was alleged that on the lalkara raised by Muhammad Aslam, Muhammad Yaqub had fired a shot from his gun which had struck Ghulam Rasool on the left side of the hip. As a result, he fell down whereafter Mahboob gave him butt blow near the right eye. The occurrence was stated to have been witnessed by the complainant, Muhammad Ashraf, and Shan Muhammad P.Ws.
2. For motive of the occurrence it is stated in the F.I.R. That Mst. Nusrat sister of wife of the deceased who was married to Muhammad Aslam had returned to the house of her mother 2-1/2 months before the occurrence on account of annoyance with her husband, 2-1/2 months before the occurrence Ghulam Rasool had complained to the mother of the accused as to why they had turned out Mst. Nusrat Bibi on which they quarreled and exchanged abuses and Ghulam Rasool slapped her.
3. After completion of necessary investigation, challan was submitted to the Court.
4. All the three accused were tried by ASJ, Gujrat. After recording statements of 11 witnesses which included the eye-witnesses, the doctor who performed autopsy, and the investigating officer, the trial Judge while acquitting Mahboob and Aslam, convicted Muhammad Yaqub under section 302, P.P.C. And sentenced him to death plus to pay fine of Rs,20,00,000, in default whereof, to undergo S.I.
For two yeaRs, Half the fine, on realisation, was directed to be paid as compensation to the heirs of the deceased.
5. The accused during statements under section 342, Cr.P.C. Had denied prosecution allegations.
They had also adduced evidence in defence.
6. The learned trial Judge has made reference for confirmation of death sentence. The convict has filed appeal while Muhammad Rafique complainant has preferred revision petition against the acquittal of Mahboob and Aslam. All the matters are being taken up together.
7. Criminal Miscellaneous No,1 of 1991 was moved on behalf of the appellant wherein it was asserted that a compromise has taken place between the appellant and the heirs of the deceased and that a sum of Rs,1,71,000 has been agreed to be paid as Badal-i-Sulah to Mst. Sakina Bibi. Prayer was made that the appellant be acquitted by accepting the compromise as ordained by the Qisas & Diyat Ordinance. The petition came up for hearing on 2-4-1991. The counsel for the appellant was directed to produce the heirs of the deceased on 22-4-1991. Mst. Sakina Bibi wife of the deceased appeared on that date alongwith the daughter of the deceased Mst. Fahmida Kausar, aged 7 yeaRs, She made statement on oath, that she had compromised with the appellant as well as with the acquitted accused and that a sum of Rs,1,71,000 has been settled as Badal-iSulah. She stated that she had already received Rs,41,000 as she needed money to repay the expenditure incurred by her on the prosecution of the case. She stated that she also required the amount to meet the current expenses. She also stated that parents of the deceased had died and he had no brother or sister and that he had, left behind only, herself as wife and their daughter Mst. Fahmida Kausar as heiRs, Walayat Khan, Member of the Union Council and Nawab Khan, Lambardar of the village also appeared and made statements, Both of them while making statements on oath corroborated the stance of Mst. Sakina Bibi.
9. Muhammad Akbar real brother of Muhammad Yaqub appellant tendered in Court remaining sum of Rs,1,30,000 out of the agreed amount of Badal-i-Sulah. After discussing the matter with Assistant Advocate-Cieneral and the counsel for the appellant we directed that a sum of Rs,1,00,000 be deposted in the Special Saving Account of Post Office Bank in the name of Mst.
Fahmida Kausar. The six monthly profit payable on the account was directed to be delivered after the expiry of six months each time to Mst. Sakina Bibi for meeting the current expenditure of education/maintenance of Mst. Fahmida Kausar. The remaining sum of Rs,30,000 was directed to be invested in Defence Saving Certificate. Scheme. The Defence Saving Certificates were directed to be purchased in the name of the minor (Fahmida Kausar) which she would encash after attaining majority. In this regard we had sent for Mr. Muhammad Jamil, Chief Postmaster (Savings)
Lahore G.P.O. And had entrusted the amount to him to open the account as noted above and purchase Defence Saving Certificates. As banking hours had closed, Mr. Muhammad Jamil was directed to produce the documents on the following day, i.e, 23-4-1991. On 23-4-1991 Mr. Muhammad Jamil produced the Special Saving Account Passbook of Rs,1,00,000 in the name of Mst. Fahmida Kausar operatable by her mother Mst. Sakina Bibi. He also produced Defence Saving Certificates worth Rs,30,000 in the name of Mst. Fahmida Kausar.
10. On that day, Mr. Muhammad Akram Qureshi, counsel for the revision petitioner appeared. He stated that his client was not prepared to accept the compromise with the appellant. He also submitted that even if the compromise was to be accepted after having been entered into by the wife of the deceased the question of distribution of Diyat money still remained open as other heirs of the deceased would also be entitled. The case was adjourned to 7-5-1991 on the request of Mr. Muhammad Akram Qureshi. The Defence Saving Certificates and the Bank Pass Book of the Account were ordered to be deposited with Registrar of this Court. We have also directed the Collector on that day to have the heirs of the deceased determined through some Assistant Collector of First Grade. This we had done to find out as to who were the heirs of the deceased who would be entitled to share the Diyat money.
11. On 7-5-1991 Mr. Hasan Askari, Tehsildar/Assistant Collector Grade I produced certified copy of Jamabandi according to which the landed property of the deceased had been mutated in the name of Mst. Sakina Bibi as widow (1/8th share), Mst. Fahmida Kausar as daughter (1/2 share) and Rehmat Khan son of Hakim Khan the next heir (3/8th share). The Tehsildar stated that there was no dispute or litigation pending regarding that mutation. Rehmat Khan in whose favour 3/8th share of the land had been mutated was also present. His statement was recorded. He verified the fact that the total land of the deceased had been mutated in the name of the wife of the deceased, his daughter and himself. He stated that none else was the heir of the deceased. However, he did not accept the compromise entered into by the wife of the deceased with the appellant. He stated that he did not want to take the share in the amount of Diyat received as Badal-e-Sulah. In view of the statement of Rehmat Khan, statements of Muhammad Akbar and Mahboob Ali, brothers of the appellant, were recorded so as to find out whether they would like to withhold the amount falling to the share of Rehmat Khan or would like Mst. Sakina Bibi and Mst. Fahmida Kausar to have that. Both of them stated that they did not want to withhold the amount falling to the share of Rehmat Khan and that the same may be passed on to the wife and daughter of the deceased. We would like to note here that it was Muhammad Akbar who had made the payment.
12. The matter was adjourned to 19-5-1991. We may note here that Rehmat Khan on that day had left without signing/thumb-marking his statement. He has thumb-marked the same today. The statement was again read over to him before thumb-marking.
13. Before proceeding further we would like to note here that Muhammad Rafique who had lodged the F.I.R. And who had preferred Revision Petition against acquittal of Aslam and Mahboob was not proved to be an heir of the deceased. In fact, his counsel also admitted that in the presence of the wife and daughter of the deceased and Rehmat Khan in whose name 3/8th share of the land had been mutated, Rafique does not come in the list of heirs,
14. Since the appeal pertains to 1990 the record of the appeal has not been printed. As the parties appeared to have compromised we decided to exempt the printing of the record and take up the appeal for disposal.
15. We are satisfied that the compromise has been entered into genuinely. Although a sum of Rs,1,30,000 has only been paid in Court, but the receipt of a sum of Rs,41,000 has been acepted by Mst. Sakina Bibi wife of the deceased. She had explained the reasons also for receiving that amount out of Court. Mst Sakina Bibi appeared thrice in this Court and at no stage she made a complaint that the said amount had not been received by her. The statements made by the Lambardar and Councillor of the village further fortify our views about the genuineness of the compromise. By virtue of the enforcement of Qisas and Diyat Ordinance offence under section 302, P.P.C. Has been made compoundable. Necessary amendments in section 345, Cr.P.C. Have also been made. In view of that we accept the compromise and allow the appeal. The appellant shall be released if not required in any other case. The revision petition which is still at motion stage also stands disposed of as the wife of the deceased stated that in terms of compromise they have also to be not proceeded against. Apart from her statement we do not think that the case agianst Mahboob and Aslam on merits also warrants interference. Their acquittal recorded by the trial Judge is based on correct appreciation of evidence and the same is maintained.
16. The arrangements made for disbursement of Diyat money prior to the appearance of Rehmat Khan, heir of the deceased and counsel for Muhammad Rafique, complainant, who had filed the revision petition are not required to be altered in view of the statement made by Rehmat Khan that he does not want to have share in the Diyat money. Had he demanded payment of the share the disbursement earlier arranged would have been changed. The disbursement of Diyat is provided in the newly-added section 330, P.P.C. Which reads as follows:-- "330 Disbursement of Diyat.--- The Diyat shall be disbursed among the heirs of the victim according to their respective shares in inheritance: ' Provided that, where an heir foregoes his share, the Diyat shall not be recovered to the extent of his share."
17. In view of the refusal of Rehmat Khan the amount falling to his share had not to be recovered.
However, the two brothers of the appellant acting as guardians offered that the whole money paid by them may be given to the wife and daughter of the deceased. They opted not to get back the amount falling to the share of Rehmat Khan.
' /Order accordingly.