' The occurrence, in the present case, took place inside the house of the petitioner wherein he killed his wife. The petitioner's own daughter lodged the report. The petitioner was apprehended, along with weapons of offence, from inside the house. After his arrest, he also made a confessional statement.
2. The petitioner was tried by the Sessions Judge, Mardan (Mr. Shahjee Rehman Khan) for the murder of his wife, Mst. Hamida Begum and for attempting at the life of his daughter, Mst. Hussan Begum (injured complainant). After the conclusion of the trial, the Sessions Judge vide his judgment, dated 23-6-1992 convicted him under section 302, P.P.C. And sentenced him to undergo life imprisonment. He was also sentenced to pay a fine of Rs,5,000 or in default of the payment of fine to suffer further two years' R.I. The fine, if recovered, was to be paid to the heirs of the deceased, as compensation, under section 544-A, Cr.P.C. Whereas under section 307, P.P.C. For attempting at the life of Mst. Hussan Begum, his daughter, the injured complainant, the petitioner was sentenced to five years' R.I. And to pay a fine of Rs,2,000 or in default thereof to undergo further R.I. For a period of six months.
3. Both the sentences were ordered to run concurrently and the benefit of section 382-B was also extended to the petitioner.
4. The petitioner filed an appeal against his conviction/sentence which was heard by a Division Bench of this Court, consisting of their Lordships, Mr. Justice Syed Ibne Ali and Mr. Justice J.D. Akbar, JJ. (Ghulam Hazrat v. The State Jail Criminal Appeal No,118 of 1992). The said appeal was, however, dismissed by their Lordships by their judgment, dated 5-6-1994.
5. For the redress of his grievance, the petitioner filed Jail Petition No,193 of 1994 (Ghulam Hazrat v. The State) before the Honourable Supreme Court of Pakistan. Their Lordships of the Supreme Court of Pakistan, Mr. Justice Fazal Illahi Khan and Mr. Justice Saiduzzaman Siddiqui, vide their Lordships order, dated 25-1-1996, refused the leave to appeal and dismissed the petition. For the sake of convenience the said order is reproduced as under:-- "In the Supreme Court (Appellate Jurisdiction)
' Jail Petition No,193 of 1994 ' Ghulam Hazrat v. The State ' On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 5-6-1994, in Jail Criminal Appeal No,118 of 1992.
' Opinion of first Judge: ' I have gone through the judgments of the Courts below in the light of the grounds raised in the petition. The occurrence in this case took place inside the house of the petitioner and its report was lodged by the petitioner's daughter regarding the 'murder of her mother. Petitioner also made a confessional statement after his arrest from inside the house. The motive for the occurrence is a usual altercation between the petitioner and his wife when she asked her husband to arrange for some money for the marriage of her son. Petitioner has been dealt leniently by not imposing the normal penalty of death on facts and circumstances of the case. I find no merits in this petition which is liable to be dismissed.
(Sd.)
' Fazal Illahi Khan, J.
' Opinion of second Judge: I agree.
(Sd.)
' Saiduzzaman Siddiqui, J.
' Order of the Bench ' The petition is dismissed. Leave refused.
(Sd.)
' Saiduzzaman Siddiqui, J.
(Sd.)
' Fazal Illahi Khan, J.
' Dated 25-1-1996."
6. It was on 8-12-1995 that the petitioner filed an application in this Court under section 561-A/345, Cr.P.C. Read with Qisas and Diyat Ordinance, 1991 for his acquittal on the basis of a "compromise".
This petition, it may be mentioned here, was dismissed for non-prosecution on 18-2-1996. An application for the restoration of the abovementioned petition was filed on 12-31996 which was accepted on 24-3-1996 and the Criminal Miscellaneous No,147 of 1995 was restored to its original number and was to be heard, in motion, on a date to be fixed by the office.
7. Today I have heard the learned counsel for the petitioner at length. It may be pointed out here that the learned counsel for the petitioner, in para. 4 of his petition, specifically stated as under:-- "4. That the petitioner is a poor man and he could not go on further appeal to the august Supreme Court of Pakistan against the decision of this Honorable Court, dated 5-6-1994."
8. I am surprised as to what prevented the learned counsel for the petitioner from disclosing the fact that the petitioner's petition for leave to appeal Ghulam Hazrat v. The State Jail Petition No,193 of 1994, was dismissed by the Honorable Supreme Court of Pakistan on 25-1-1996. The procedure adopted by the learned counsel for the petitioner, in not disclosing the abovementioned fact, is not only highly improper but also amounts to misuse of the process of the Court. He was, therefore, advised to be careful in future.
9. Thereafter, when the learned counsel for the petitioner was asked as to how this petition could be entertained when no appeal was pending in this Court and that the matter has since been finally decided by the Supreme Court of Pakistan, referred to above he submitted that in such like matters a guideline has been laid down by the Honorable Supreme Court of Pakistan in case Nazak Hussain v. The State reported as PLD 1996 SC 178 by a Full Bench consisting of their Lordships. Mr. Justice Zia Mahmood Mirza, Mr. Justice Muhammad Munir Khan and Mr. Justice Muhammad Bashir Khan Jehangiri. It has been held as under:-- For the guidance of the subordinate Courts and the citizens it is hereby laid down that---
(i) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i,e, accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.;
(ii) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, application for permission to compound the offence shall be made before the appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.
(iii) under section 338-E(1), P.P.C., subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. Relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. Shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C., and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused;
(iv) if a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties;
(v) for the purpose "of determination of questions relating to the wavier or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-E(1), P.P.C."
10. The counsel for the petitioner, therefore, prayed that he be allowed to withdraw this petition with permission to approach the trial Court in this case under section 338-E(2), P.P.C. The request, being genuine, is granted and this petition is dismissed as withdrawn. The petitioner may now approach the trial Court which shall act in accordance with law.
11. The office is directed to see that the dictum laid down by the Honorable Supreme Court of Pakistan in case reported as PLD 1996 SC 178 is followed in letter and spirit, in future. as withdrawn. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.