1. ' MUHAMMAD AFZAL ZULLAH, C J.---Leave to appeal has been sought in this criminal matter. It has arisen out of a case of murder wherein hurt of various kinds was also caused to the witnesses.
2. ' The prosecution case as contained in the deposition of Ghulam Sarwar complainant is as follows:- - "I reside at Dhoke Sumandar Khan of village Bolianwal which is at a distance of about one furlong from village Bolianwal towards East. I had contested election against Muhammad Ashraf accused in the previous local bodies elections and I had won. Muhammad Ashraf had been causing hindrances in our development works due to his grudge of his losing election. On 4-5-1988 at about 5-00 p.m. I alongwith my nephew Anwaar Ahmad were coming back to our Dhok after cutting wheat crop. When we reached near Garrage of Malik Mansab Khan we saw accused Muhammad Ashraf armed with .12 bore gun, Muhammad Taj also armed with .12 bore gun.
3. Muhammad Afzal armed with .12 bore gun, Abdul Ghafoor armed with .12 bore gun. Waris Khan armed with his spear, Abdul Khanan, Rehmat Khan and Muhammad Khan were also armed with spears. On seeing us they raised a Lalkara that they will not spare us. Muhammad Ashraf fired with his .12 bore gun hitting me on the right leg, Muhammad Taj also fired with .12 bore gun hitting Anwaar Ahmad my nephew on the right side of his mouth/face. Afzal accused also fired with his .12 bore gun hitting Anwaar Ahmad on the left leg. In the meanwhile, Faraq Sultan widow of Sher Ahmad who is my paternal-cousin and Mst. Sardar Khanam my maternal-aunt who is also my paternal-cousin reached the spot. Faraq Sultan had come from her house whereas Sardar Khanam had come from her field or from somewhere else. Muhammad Taj accused fired at Mst.
4. Faraq with his .12 bore gun hitting her on her face, nose and eyes. Abdul Ghafoor also fired with his gun hitting Mst. Faraq Sultan on chest, belly and left thigh. Abdul Ghafoor again fired hitting Sardar Khanam on the right side of her head near the right ear. Due to which she fell down. Due to hue and cry raised by us many people attracted the spot, seeing them the accused ran away by firing in the air. After the occurrence we were taken to Civil Hospital, Attock where Mst. Sardar Khanam succumbed to the injuries when she was being taken on stretcher. In the meanwhile police had reached in the hospital. I got recorded by statement Exh.PD which was read over to me by Ghulam Habib S.I. And I signed the same as token of its correctness. Afterwards I alongwith other injured were medically examined. They had murdered Sardar Khanam and injured us due to election rivalry."
5. ' This version was supported by other ocular evidence including the deposition of the injured witnesses. The trial Court rejected the plea of bare denial by the petitioners and their co-accused.
6. The trial ended in conviction of the four petitioners. The remaining accused were acquitted. On appeal in the High Court the sentence of death awarded to Abdul Ghafoor was reduced to life imprisonment as was awarded to the other convicts. The other sentences including the imprisonment and fine were also awarded.
7. ' Learned counsel after losing the plea for acquittal of theaccused on acceptance of a compromise, when arguing the case on merits, contended that notwithstanding the firing by the accused at the deceased and the witnesses it could not at all be assumed that there was an intention to kill. We are unable to accept this extraordinary plea in a case like the present one. The only circumstance that he could press with some confidence was that in so far as the main enemy; namely, Ghulam Sarwar is concerned he was not fired at again after he having suffered an injury had fallen on the ground. Although this circumstance also is fully explained, the very fact that Ghulam Sarwar was fired at with a .12 bore gun as in this case is sufficient indication of the fact that there was no other intention except to kill the adversary. The fact that Ghulam Sarwar did not die is hardly an argument to help the petitioners. In such like cases some times providential intervention in the form of body resistance and re-action frustrates the design and effort of the accused.
8. Argument of learned counsel thus fails. Same consideration would be applicable to a subsidiary argument advanced by the learned counsel to the effect that there was.No proof that all the accused/convicts acted in furtherance of common intention of all. That also stands fully proved by their conduct in firing at their adversaries with lethal weapons like .12 bore guns. Thus there is no force in this petition and the same is dismissed.
9. Before closing this order it needs to be mentioned that the applications for compromise and the filling of the pro forma prescribed by this Court should be taken more seriously by the parties and the learned Members of the Bar than what has been experienced so far. One after the other the Court has encountered most casual attention being paid to the requirements contained in the pro forma. Obviously without satisfaction of the Court for which three stages have been prescribed no compromise can be accepted for it being acted upon:--
(1) Careful scrutiny by the office, as a first stage. It shall in such a case refuse to entertain any application for compromise in which the pro forma is not meticulously and carefully studied and filled in with reference to the peculiar circumstances of each case.
(2) The second stage is the processing in Chamber by one of the learned Judges of the Court. This facility has been provided so as to save the time of the parties and the Court and if there are any shortcomings the same may be removed in Chamber hearing. It has also been laid down that the parties shall have to satisfy the learned Judge in Chamber with regard to the correctness of each entry in the pro forma with reference to the facts and circumstances of the case and the law applicable thereto including the latest precedent law. And in token thereof the learned Judge would certify correctness of each column separately. The office has been directed not to put up a case in the Court for disposal on the basis of compromise unless the above condititons are satisfied.
(3) Lastly in the Court only that compromise will be accepted and acted upon regarding which there is no doubt or dispute left any more. If it is a matter of contrivances through which a party has to be subjected to compromise, it will be no compromise at all.
10. ' A note of caution and warning is for the parties concerned that any doubt with regard to the free will of the parties in entering into 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.
11. ' In this case even the Court Associate and Research Assistant have pointed out certain defects Discovered by them in the purported compromise submitted in the form of the application and the pro forma. The objections are appended herewith as a Schedule to this judgment. Even if some and not all of the objections are valid, which after some discussion the learned counsel for the petitioners had to agree are valid, there would be no scope at all for acceptance of the compromise. Accordingly, we rejected the plea for acceptance of the compromise after a short summary preliminary heMing on this question and then the learned counsel argued the case on merits.
12. ' Leave to appeal thus is refused.
13. ' SCHEDULE (Objections by Court Staff) The compromise suffers from following defects:-- 5(a) Silver rate not mentioned.
14. 5(b)If the rate was not known how its price i.e, Rs,1,80,000 for 30,630 grams of silver is mentioned.
15. 6 Against this cloumn the shares of minors are not mentioned as required under section 309 (1)(a) and (b), P.P.C. Specially when they were mentioned against column No,8. This column should not have beenfilledas"xxxxxxxxxxx".
7. No relationship of injured persons mentioned in column 7 at S.No,7, 8 and 9 is shown with the victim. They are not mentioned in the certificate at page 91 as heirs of the victim. It is necessary to mention in the pro forma whether they have waived their right of Qisas as injured persons or as heirs of the victim. It is also not mentioned whether they are entitled to Diyat, Arsh or Daman and under which provisions of law and what is the amount of Diyat, Arsh or Daman, because it is necessary to mention in case of Arsh in column 7(b) and in case of Daman in column 7(c), the same is not mentioned in the said columns. It is mentioned in their affidavits that they have waived their right of Qisas but this fact has not been shown in the pro forma.
8. Names' of minors are given but it is not stated in the pro forma that minor cannot waive himself or through his guardian under section 309(a) and (b), P.P.C.
16. 8(a). Not filled properly.
9. The Diyat amount not shown whether it is deposited in the account of minors. The share of Diyat of one of the real sisters who has not waived her right of Qisas is not stated as it is necessary under section 309(2), P.P.C. The amount of Diyat to the extent of her share should have been stated in column 7(a) of the pro forma.