' This application under section 561-A, Cr.P.C. Has been moved on behalf of the legal heirs of the deceased (Abdul Rashid) for accepting and implementing their compromise with Arshad son of Elahi Bakhsh, convicted accused, in the murder case of Abdul Rashid deceased.
2. Muhammad Arshad faced trial for the charge of committing murder of Abdul Rashid deceased before the learned Additional Sessions Judge, Lahore who vide judgment dated 30-6-1980 convicted him under section 302/34, P.P.C. And awarded him life imprisonment with a fine of Rs,4,000 or in default of payment of fine to suffer R.I. For two years. The conviction and sentence awarded to Muhammad Arshad was upheld by the High Court while dismissing his appeal vide judgment dated 15-4-1985.
3. Mst. Razia, widow, Sajida Bibi, daughter, Ashiq and Riasat sons of Abdul Rashid deceased have made statements before this Court that they as a result of compromise with Arshad son of Elahi Bakhsh convict have forgiven him in the name of Almighty Allah and shall have no objection, if he is acquitted of the charge.
4. Learned counsel for the appellant submitted that the High Court by virtue of section 561-A, Cr.P.C.
Is empowered to entertain such an application and give effect to the compromise in the interest of justice and the welfare of two families. He next submitted that acquittal in terms of section 345(6), Cr.P.C. As a result of compromise shall not amount to review of the judgment of conviction on merits.
5. Kh. Shaukat Ali, Advocate, appearing on behalf of the State submitted that since the parties have compromised the matter and legal heirs of the deceased have made statements in this behalf, there is no bar for this Court to give effect to the compromise irrespective of the fact that the parties effected it after final disposal of the appeal of the convict.
6. The salient features of this case are that the parties compromised much later after the dismissal of the appeal of Muhammad Arshad convict against his conviction and sentence. Ordinarily review of orders and judgment in criminal jurisdiction is not possible by this Court except in rare and exceptional cases in which the orders and judgments passed do not either fall within the ambit of section 369, Cr.P.C. Or have been passed without jurisdiction or in violation of mandatory provisions of law. The jurisdiction under section 561-A, Cr.P.C. No doubt, can be invoked in special circumstances when order passed is in violation of mandatory provision of law; or without jurisdiction or it was passed without affording an opportunity of hearing to the parties, but to reopen the case on merits or on the ground that earlier a point could not be argued on the question of sentence etc. As the case may be, is not , permissible. There was also no scope of review of a criminal jurisdiction on basis of compromise between the parties before the substitution of Chapter XVI of P.P.C. (sections 299 to 338 by way of Qisas and Diyat Ordinance) but after change in law, the finality of judgment under section 369, Cr.P.C. Shall no more be a bar to accept the compromise and give it effect in terms of section 345(6), Cr.P.C.
7. Section 309, P.P.C. Provides that in case of Qatl-e-Amd, an adult sane Wali may at any time and without any compensation waive his right of Qisas. Similarly an adult sane Wali may at any time on accepting Badl-e-Sulh can compound his right of Qisas in Qatl-e-Amd under sections 310, P.P.C. Ali offences under Chapter XVI, P.P.C. Can be wavied and are compoundable under sections 309, 310, P.P.C. Read with section 338-E, P.P.0 subject to the provisions of section 345, Cr.P.C. And this Chapter and provisions under sections 309 and 310, P.P.C. Shall mutatis mutandis apply to waive and compound such offences.
' Section 338-H, provides that nothing in Chapter XVI, P.P.C. Except sections 309/310 and 338-E, shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (IInd Amendment) Ordinance VII of 1990 or to the offence committed before such commencement. In case of Qatl-e-Amd an adult sane Wali may before the Court or the authorised officer of Court at any time before the execution of sentence of Qisas without compensation waive his right of Qisas. Similarly an offence can be compounded by an adult sane Wall at any time before execution of Qisas on accepting Badl-e-Sulh. Thus the concept of waiving the right of Qisas or compounding this right on accepting Badl-e-Sulh as provided under sections 309 and 310, P.P.C. Read with section 338-E is not restricted only to the cases pending before a Court but these provisions can be invoked at any time before execution of sentence.
' The pivotal question for determination is as to whether after dismissal of appeal and conviction attaining finality, this Court under section 561-A, Cr.P.C. Is empowered to accept the compromise between the parties in terms of section 309/310 read with section 338-E, P.P.C. And other relevant provisions of law on the subject. Section 338-F provides that in the interpretation and application of provisions of this Chapter and in respect of matters ancillary and akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The right of waiving of Qisas or compounding the same on account of forgiveness or Badl-e-Sulh, as the case may be, cannot be only confined to the case pending before a Court or to a particular time and stage, rather this concept of forgiveness and Badl-eSulh is with reference to the right of Qisas of Wali which remains operative till the sentence is not executed. Thus irrespective of an express provision of law, the Court shall be competent to entertain and give effect to the compromise between the parties even after decision of the case and is not functus officio in matter of compromise. The forgiveness is the quality of God who is merciful the Muslims are enjoined to forgive others as the forgiveness is divine attribute. Almighty Allah in Suras 111, 133 and 134 says as under:-- "Be quick in the race forgiveness from your land.
' God loves those who spend freely in the cause of Allah who refrain anger and forgive men."
' From the above-referred verses of Holy Quran, it is quite clear that pardon or forgiveness can be given at any time to a person by another person with no ' limitation of time, the forgiveness as a result of compromise in a compoundable offence can be given at any stage before the execution of sentence which cannot be refused by the Court to be given effect as such, irrespective of the fact whether the case is still pending or has been disposed of. However, the question would be that in decided cases which would be the proper forum to be approached. The provisions of law on the subject empower Court having the jurisdiction in a particular matter to accept the compromise, therefore, the application for leave to compound an offence is to be submitted before the Court which finally decided the case in appeal or revision, as the case may be, and if no appeal or revision is pending before an appellate or revisional Court, the application is to be submitted to the trial Court which awarded conviction and sentence to an accused and to no other agency. The administration of justice is essentially an obligation of the Courts of law. In absence of any particular authority appointed under the law, to deal with such like cases, the matter cannot be left at the mercy of executive authorities, which are to act in aid of execution of order of the Court and to implement them as such. Thus, the powers and duties assigned to the Courts of law should not be abandoned in favour of other agencies.
9. The High Court in addition to what it possesses under Chapter XVI of P.P.C. (sections 299 to 338) has inherent powers under section 561-A, Cr.P.C. And in order to secure the ends of justice can pass an appropriate order, in cases and circumstances which are not covered by the express provisions of the Code and where the interference is the demand of justice. However, powers under section 561-A, Cr.P.C. Should not be used to obstruct or divert ordinary course of criminal procedure. An application under section 561-A, Cr.P.C. Can be made to the High Court even after the disposal of case finally. This special provision in order to secure the ends of justice can be applied and parties cannot be denied the relief sought, through compromise for reasons that the matter is no more pending before the Court and has already been decided. There is no cavil to the proposition that the High Court under section 561-A, Cr.P.C. Is competent to consider the entitlement of an accused to the benefit of section 382-B, Cr.P.C. At any stage even after the decision of the case and can extend this benefit to an accused, if earlier omitted from consideration, but jail authorities cannot give effect to section 382-B, Cr.P.C. For the benefit of an accused who was not allowed it by the Court. PLD 1991 SC 1145 and PLD 1982 Kar.
542. Similarly the compromise between the parties in a criminal matter under this chapter is necessarily to be given effect by the Court which finally decided the matter. The executive authorities even if are specifically empowered to discharge this duty, shall not be in a position to do it for want of jurisdiction, to give effect to the provision of section 311, P.P.C. with the result that despite waiving or receipt of compensation, if Tazir punishment is needed , to be inflicted, under section 311, P.P.C. It shall not be possible. Thus the provisions of section 309/310 read with sections 338-E, 338-H and 338-F, P.P.C. Are to be given full effect even in decided cases through the Courts of law. The provisions relating to the offence of Qatl-e-Amd and hurt as enjoined in the Holy Qur'an and Sunnah have been introduced with the spirit to enforce the same as penal law and put it into real practice and not to make these provisions redundant.
In the light of above discussion, the compromise on behalf of legal heirs of the deceased Abdul Rashid forgiving Muhammad Arshad convict is accepted and given effect accordingly. The sentence of Muhammad Arshad is quashed. He shall be deemed to be acquitted of the charge in terms of section 345(6), Cr.P.C.
' Crl. Misc. 1095-M/93 stands disposed of.
Compromise accepted.