2. It is contended by the learned counsel for the petitioner that complainant of the murder case of Muhammad Younas was Ghulam Shabbir who is present petitioner. He has challenged the impugned order on the ground that since he was the complainant and a brother of the deceased Muhammad Younas, therefore, he should have been associated with the compromise before giving permission to decide the case on its basis.
3. Secondly it was contended by the learned counsel for the petitioner that conduct of Mst. Hakim Bibi was not fair because she did not disclose all the legal heirs of the deceased Muhammad Younas. In this respect, it was alleged that Muhammad Younas had taken Mst. Shahnaz as second wife and from her he also has one daughter, who are also legal heirs of aforesaid deceased. Since they have not been associated in the compromise, therefore, at best Mst. Hakim Bibi can enter into a compromise by waiving her right of Qisas and to forgive the assailants i.e. The murderers of the deceased in the name of Allah or otherwise. However, if she enters into a compromise on behalf of her minor son Javed Iqbal, the same will be possible only if the murderers deposit the value of Diyat according to his share in some account, which is encashable on his majority.
4. The learned counsel for the respondents has been fair to contend that Mst. Hakim Bibi can only enter into compromise and forgive the killers of Muhammad Younas deceased for herself or on behalf of her minor son provided the amount of Diyat as stated above is deposited in his name. So far as the other legal heirs such as Mst. Shahnaz and her daughter are concerned, they can also be ascertained before the compromise in question is finally decided by the learned trial Court.
5. I have considered the submissions made at the Bar from both sides. It is clear that right to compound is given to the legal heirs of deceased person under the existing law. The complainant though a brother of the deceased is not a legal heir as the deceased had left behind his children and as such his brothers are excluded from inheritance. On that ground the complainant cannot resist the compromise if that is to be entered into genuinely by the legal heirs of the deceased.
Since the learned trial Judge has not discussed in the impugned order as to how the case of the minor will be dealt with, therefore, it does not fall squarely in the ambit of law which prescribes procedure for dealing with the right of a minor heir. The impugned order is accordingly set aside.
The revision petition is accepted to the extent that the learned trial Court shall first ascertain about all the legal heirs of the deceased and then shall proceed further to record the compromise, if any.
The interest of the minor children left by the deceased shall also be carefully watched in view of the provisions contained in proviso to subsection (2) of section 310, P.P.C. Needless to say that amount of Diyat falling to the share of minors shall be deposited in their names in some lucrative and profit-bearing scheme such as purchase of Defence Saving Certificates encashable after the minors attain majority. With such safeguard and after satisfying that the compromise is genuine and does not defeat any provisions of law, the learned trial Court shall re-decide the matter in the light of provisions contained in section 309/310, P.P.C. Read with section 338-E, P.P.C. And section 345, Cr.P.C.
6. The revision petition is disposed of accordingly. Parties are directed to appear before the trial Court on 23-10-1996, the date already fixed in that Court, for further proceedings.