SH. M. ZUBAIR, J.-- Azmat Ullah Khan petitioner feeling aggrieved by the order dated 29.7.1992 passed by Mr. Saif-ur-Rehman Khan, learned Addl. Sessions Judge, Mianwali, has preferred this revision petition.
2. Facts as spelled out from the petition are that on 21.1.1991, the petitioner moved two applications, to the effect that a compromise' through the intervention of the notables of the Illaqa had been effected between the parties, who were closely related to each other. He further submitted that Diyat had been paid to the husband, wali of the deceased and to her minor daughter aged 2 years.
He also submitted that he is prepared to pay Diyat to the mother of the deceased if amount of share is determined and intimated.
The complainant Inayat Ullah Khan moved an application contending therein that he had relinquished the right of Diyat, waived the right of Qisas and thus in view of the compromise the petitioner/accused be acquitted.
Mst. Sahib Khatoon an eye-witness named in the FIR, mother of the deceased also moved an application containing names of two brothers of the deceased being her legal heirs praying therein that permission to compound the offence may not be granted as she was not inclined to effect a compromise with the petitioner/accused. The learned Addl. Sessions Judge Mianwali dismissed the application of the petitioner/accused.
The petitioner has been challaned and sent up for trial in case FIR No.214, dated 12.9.1990 under Section 302 PPC registered at Police Station Saddar Mianwali, recorded on the statement of Inayat Ullah Khan, real brother of the petitioner for the murder of Mst. Zar Shahzadi Iram Razia wife of the complainant by firing four effective shots at the deceased with his licenced 12 bore gun in the house of the complainant situated at PA.F. Road Mianwali. The occurrence was witnessed by Mst.
Sahib Khatoon mother of the deceased, Tariq Javaid brother of the deceased and, the complainant.
3. The learned counsel for the petitioner while addressing the Court has raised the following contentions in support of his case:-
(i) that as the two major heirs of the deceased have entered into a compromise and received the Diyat money, the petitioner cannot be tried under Section 302 PPC. The only course open to the Court is to order the heir, who has refused to receive the money to receive the same;
(ii) that since two of the heirs of the deceased have received the Diyat money, the petitioner could not be charged under Section 302 P.P.C, instead he could only be charged with under Section 311 PPC; and
(iii) that the charge framed against the petitioner under Section 302 PPC is defective as in the presence of waiver by two heirs of the deceased, at the most, the petitioner can be charged with under Section 311 PPC.
4. Mr. Nazir Ahmad Ghazi, learned A A.G. Has appeared in this case on Court's call and has just simply controverted the contentions of he learned counsel for the petitioner.
5. I have heard the learned counsel for the parties at length.
6. The complainant is the real brother of the accused/petitioner, it is but natural that he would be inclined to compromise the matter with him to save the skin of his real brother who is accused in this case. The other two eye-witnesses are the mother and brother of the deceased who have refused to compromise the matter. Their statements are yet to be recorded in course of trial. Under these circumstances, I am unable to reconcile myself with the contention of the learned counsel for the petitioner that the Court can order the unwilling heirs to accept and receive the Diyat money.
It would be highly in-appropriate to deprive the eye-witnesses of their valuable right to depose on oath in Court, if they so choose to do so against the accused. It would also be unjust on the part of this Court to make such an order which would force them to do something against their wishes and is not permissile under the law. I am of the considered view that such an order would be against all norms of justice.
The object of framing a charge in a criminal case is to enable the accused to know the precise accusation against him, which he is required to meet before the evidence is adduced by the prosecution against him.
The provisions of Section 265-D Cr.P.C, envisages that after perusing the police report and all other documents and statements filed by the prosecution, if the Court is of the opinion, that there is ground for proceeding with the trial of the accused, it shall frame in wiring a charge against the accused. Section 221 Cr.P.C, further lays down that the charge should state the offence with which the accused is charged. The spectrum of a charge should be such that all eventualities and exigencies till the conclusion of trial can be met with the caution so that no prejudice is caused to the accused. For the purposes of a just and fair trial, the Court is duty bound to frame the charge on the basis of the material placed before it without making deeper appreciation of the material.
The charge framed under Section 302 PPC against the accused is legal, proper and has not caused any prejudice to him. It would be open for the learned trial Judge to appreciate the evidence at the conclusion of the trial in proper legal perspective and decide the case of its merits. It is correct that the complainant has expressed his unwillingness to support the prosecution case, but still there are to eye-witnesses who have not compounded the offence with the petitioner, hence it would be premature at this stage to frame the charge under Section 311 PPC because an accused charged under a graver offence can always be convicted to a lesser offence, but if an accused is charged with a lesser offence initially then it would not be possible for the Court to punish him for a graver offence.
In the present case, the learned trial Court has rightly framed the charge under Section 302 PPC against the petitioner on the basis of the material placed before it by the prosecution.
The evidence of the prosecution is yet to be recorded and the accused too has to rebut and produce defence evidence, if he is so advised or chooses to do so.
Thus only then on the basis of material brought on record the trial Court would be in a position to assess as to the nature of offence made out against the accused for the purposes of his conviction or acquittal.
The provisions of Section 311 PPC would be attracted only when the accused is to be convicted by way of Tazir inspite of waiver or compounding of the right of Qisas, which stage has yet not come.
The upshot of the above discussion is that the contentions raised by the learned counsel for the petitioner carry no merits end are repelled, this petition is dismissed.