1. NASIM HASAN SHAH, J.--This is an application under section 345, Cr.P.C. As amended by the Criminal Law (Second Amendment) Ordinance, 1990, seeking acquittal of the petitioners in Criminal Petition No, 350-L of 1990 namely Safdar Ali, Abdul Hamid and Abdul Wahid who stand convicted under section 302/34, P.P.C. And sentenced to imprisonment for life with fine of Rs, 5,000 and payment of compensation of Rs, 5,000 each under section 544-A, Cr.P.C. By the Lahore High Court.
2. The petitioners, above-named, are brothers and the case of the prosecution is that a dispute existed between the father of the petitioners and Abdul Haq P.W. About the Nakka of the Khal. The deceased Muhammad Bashir used to accompany Abdul Haq during the hearings of the case in respect of the Khal and the petitioners were annoyed with him on this account. This annoyance was responsible for the unfortunate incident wherein the deceased lost his life at the hands of the petitioners resulting in their conviction under section 302, P.P.C. And sentence of life imprisonment.
3. A petition for leave to appeal (Criminal Petition No, 350-L of 1990) was filed in this Court against the aforesaid conviction and sentence which is still pending.
4. In the meanwhile, on 5th September, 1990, the Qisas and Diyat Ordinance, 1990 -- Criminal Law (Second Amendment) Ordinance, 1990 was promulgated and this application has been moved before us wherein it is submitted that a compromise has been entered into between the petitioners and the heirs of the deceased with a view to fostering good relations between the parties in the future; that the petitioners have paid an amount of Rs, 1,71,000 in cash as Badal-i-Sulah and that they should be acquitted under its provisions.
5. The compromise has been entered into between the petitioners and the following heirs of the deceased:-- 1 Mst. Aziz Bibi, Widow 2 Muhammad Tayyab 3 Muhammad Iqbal Sons 4 Muhammad Tariq 5 Mst. Irshad Bibi, Daughter 6 Zulfiqar Ahmed 7 Faizur Rasul Minor through their 8 Muhammad Siddique Mother Mst. Aziz Bibi A compromise deed accompanied by affidavits sworn by the heirs of the deceased has also been submitted confirming the factum of compromise.
6. This application came up for hearing on 17-12-1990 on which date Mst. Aziz Bibi widow of Muhammad Bashir deceased, major sons of the deceased as also his daughter Mst. Irshad Bibi were present in person. The remaining heirs namely the three minor sons of the deceased were represented by their mother Mst. Aziz Bibi. Alongwith the heirs of the deceased Mr. Muhammad Aslam Ch. Advocate-on-Record was present while the Additional Advocate-General represented the State. On that date the heirs of the deceased stated that they have already received the amount of Rs,1,71,000 as Badal-i-Sulah and utilised the said amount in the construction of the shops on some land owned by them in Ghalla Mandi, Sumundri and, therefore, wished to compound the offence. But we were reluctant to grant their prayer because the issues involved called for deeper and closer examination. Accordingly, we decided to request some Jurists specializing in this field namely Mr. Khalid M. Ishaq and Mr. Ijaz Hussain Batalvi to assist us as amicus curiae. We also issued notice to the Advocate-General Punjab to also appear in this case observing as follows: "This is a case of compounding of Qisas (Sulah) in qatl-i-amd falling under section 310 of the Penal Code as substituted by Criminal Law (Second Amendment) Ordinance, 1990. According to subsection (1) of section 310 "in case of qatl-i-amd, an abult sane wali may, at any time on accepting badal-i-sulah, compound his right of qisas". The question, inter alia, arises whether the amount of badal-i-sulah must necessarily be accepted in the presence of the Court and even if this may not be a requirement of the statute whether this condition should not be adopted in practice, for the safe administration of justice?
7. In the present case, we are also told that the amount was paid in cash sometime before 13-10- 1990. Will such an averment be sufficient proof of payment of badal-i-sulah?
8. Again, accordingly to clause (a) of section 305 in case of qatl, the wali shall be the heirs of the victim, according to his personal law. But if some of the heirs of the victim are minors, the father or if he is not alive the paternal grandfather of such wali shall have the right of qisas on his behalf (section 313 (2)(b) refers). In this case, the three minor heirs of the deceased are represented by their mother and not by their grandfather- who, we are told, is already dead. Can the mother, in these circumstances, have the right of qisas on their behalf?
9. Furthermore, the offence of qatl-i-amd committed by the three offenders is sought to be compounded in this case. Can the amount of Rs, 1,71,000 be treated to be an equitable or fair badal-i-sulah for compounding the right of qisas in the circumstances?"
10. This case has come up today (13-1-1991). In the meantime, Ordinance No, I of 1991 namely Criminal Law (Amendment) Ordinance, 1991 has been issued repealing the Criminal Law (Second Amendment) Ordinance, 1990. Mr. Khalid M. Ishaq, one of the Amicus Curiae, is not present owing to indisposition but Mr. Ijaz Hussain Batalvi, the other Amicus Curiae is present who has given us benefit of his learned views. Mr. Maqbool Elahi Malik, learned Advocate-General, Punjab has also been heard.
11. In this case, three petitioners, though convicted under section 302, P.P.C., have been sentenced to life imprisonment. Section 310 provides for compounding of qisas (sulah) in qatl-i-amd and lays down that "in the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-i- sulah, compound his right of qisas". Qisas is defined in clause (k) of section 299 as follows:-- "(k) "qisas" ( 001-.4.; ) means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali".
12. (Underlining is ours).
13. Accordingly, the right of Qisas means the right of causing death of the convict if he has committed qatl-i-amd. In this case, as the petitioners have not been sentenced to death, but to life imprisonment, the question of the heirs of the victim compounding their right of qisas does not arise.
14. The present case, therefore, falls under the provisions of subsection (2) of section 345, as amended by the Criminal Law (Amendment) Ordinance, 1991.
15. According to section 10 of the said Ordinance clause (b) of section 345, of the Cr.P.C. Has been substituted as follows:-- "(b) in subsection (2), in the table, in the second column, for the figures "302, 303, 304 A, 305, 306, 307, 308, 324, 325,326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338" and the entries relating thereto in the first and third columns the following shall be substituted, namely:-- "Oatl-i-amd 302 By the heirs of the victim Subsection (2), as amended, now reads as follows:-- "(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the person mentioned in the third column of that table: SectionOffence Whether the police may arrest without warrant or not.Whether a warrant or a summon shall ordinarily issue in the first instance.Whether bailable or notWhether compoundable or notPunishment under the Pakistan Penal CodeBy what court triable 1 2 3 4 5 6 7 8 302 Qatl-i- AmdMay arrast without warrantWarrant Not bailableCompoundable Qisas or death imprisonment for life or imprisonment up to twenty-five years.Court of Session It is also relevant to point out that despite the fact that the offence was committed before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990, the offence committed in this case can be compounded. This is possible on account of the provisions of section 338-E read with section 338H, which are reproduced below for facility of reference: "338-E. Waiver or compounding of offence.--Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure. 1898, all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences. (Underlining is ours).
16. While section 33811 provides: "3381-I. Saving.--(1) Nothing in this Chapter, except sections 309, 310 and 338E, shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990), or to the offences committed before such commencement."
17. A perusal of the above provisions indicates that the waiver or the compounding of an offence in cases falling under section 309 [Waiver-Afw of Qisas in Qatl-i-Amd] and section 310 [Compounding of Qisas (sulali) in Qatl-i-Amd] is possible even in those cases of Qatl-i-Amd where the right of Qisas cannot be enforced becuase the sentence of death has not been imposed and the lesser sentence granted under section 3(12, P.P.C. In view of the provision of section 345 of the Code of Criminal Procedure, 1898 (as amended).
18. This brings us to the question whether permission to compound the offence should be allowed in the circumstances of this case. In this connection, we observe that not only that all the heirs of the deceased desire to compound the offence and end their differences but a sum of Rs, 1,71,000 is to be paid to the heirs of the victim as badal-i-sulah by the convicts. According to the newly introduced section 323, P.P.C. The Court is required to fix the value of the diyat keeping in view the financial position of the convicts and the heirs of the victim provided, however, that this amount is not less than the value of thirty thousand six hundred and thirty grams of silver and under subsection (2) of section 323 (ibid) the Federal Government is to declare by notification in the official Gazette (on the 1st day of July each year) the value of silver which shall be payable during the financial year. As the value of thirty thousand six hundred and thirty grams of silver comes to about Rs, 1,71,000, the diyat being paid is not less than the statutory amount prescribed in this behalf. Besides it is also quite reasonable.
19. The next question requiring deeper and closer examination is the question whether the amount of badal-i-sulah should be paid in the presence of the Court even if this condition is not laid down in the statute, with a view to ensuring the safe-administration of justice. This question, however, is now no longer of any importance in this case because the petitioners have today brought This amount will be transferred to the Account of the above named persons which are being opened by them in the National Bank of Pakistan, Sumundari. The in Court the entire amount of Rs, 1,71,000 for payment to the heirs of the victim. By so doing, as rightly contended, by the petitioners, any anxiety which might be entertained with regard to how the interest of the minor heirs of the deceased can be safeguarded can be obviated, because the Court can make any provision considered suitable by it in this behalf. In this way, the difficulty that arises with regard to the requirement of the provisions of clause (b) of subsection (2) of section 313 which lays down that "if some of the heirs of the victim are minors, the father or if he is not alive the paternal grandfather of such wali shall have the right of Qisas on his behalf', can be overcome. As noted already, the three minor heirs of the deceased are being represented by their mother and their paternal grandfather is already dead.
20. By tendering the amount of diyat payable to the minors in Court by the petitioners, with the prayer that the amount payable to them may be paid to them in any manner considered suitable by it, the difficulty is resolved.
21. 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 persons 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 that the amount of Rs, 1,71,000 is a fair badal-i-sulah for compounding the offence.
22. Accordingly, we would permit the compounding of the offence on payment of Rs, 1,71,000. The aforesaid amount of Rs, 1,71,000 paid towards badal-i-sulah shall be deposited by the Registrar of this Court in the National Bank of Pakistan in the name of the heirs of the victim as follows:-- (1)Mst. Aziz Bibi, Widow Rs,21,375.00 (2)Muhammad Tayyab Rs,23,020.00 (3)Muhammad Iqbal major Rs,11,510.00 each (4)Muhammad Tariq sons (5)Mst. Irshad Bibi, daughter (6)Zulfiqar Ahmed (7)Faizur Rasul minor Rs,23,020.00 each (8)Muhammad Siddique sons Total 1,71,000.00 This amount will be transferred to the account of the abovenamed persons which are being opened by them in the National Bank of Pakistan Sumundari. The Account of the three minor sons namely Zulfiqar Ahrnad Faizur Rasul and Muhammad Siddique shall be opened and operated on their behalf by their mother Mst. Aziz Bibi.
23. Before parting with the case we would like to express our gratitude for Mr. Ijaz Hussain Batalvi, amicus curiae, for the valuable assistance given by him in resolution of this case.
24. The final result of this discussion is that permission to compound the offence is allowed. This petition is converted into an appeal and is accepted and I the three convicts Safdar Ali, Abdul Wahid and Abdul Hamid stand acquitted.