' Rahim Bakhsh appellant was convicted for an offence under section 302-B of the P.P.C. And sentenced to death by the learned Additional Sessions Judge, Bahawalpur vide his judgment dated 28-9-1995. He was also ordered to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544 (a) of the Cr.p.C. In case of non-payment of the said amount the convict had to undergo S.I. For 6 months, if he did not own any property which could be confiscated for recovery of the amount of compensation.
2. The convict challenged his conviction and sentence by way of Cr.A. No,72 of 1995/BWP. During the pendency of the appeal, Shauq Muhammad, complainant moved an application (Cr.M.1-M/98) before this Court stating therein that he alongwith other legal heirs of the deceased had arrived at a compromise with the convict and waived their right of Qisas. He prayed that the convict be acquitted on the basis of compromise. The said application came up for hearing on 9-12-1998 before a Division Bench of this Court which directed the office to fix the appeal for hearing and also directed the learned Sessions Judge, Bahawalpur to record statements of the legal heirs of Khizar Hayat, deceased and submit his detailed report as to whether the compromise was genuine and all the legal heirs had waived their right of Qisas without coercion or extraneous influence. It was also directed that in case legal heirs of the deceased had agreed to accept "Badal-e-Sulah", then its amount and mode of payment be stated. The application again came up for hearing before the Division Bench on 21-12-1998 when the Bench noted: "A pivotal law point is involved in this case; whether the accused who has been convicted by the trial Court and his appeal is sub judice before its Court can seek acquittal on the basis of "Razinama" without confessing his guilt". To examine this question the case was adjourned on a few dates and then an order was passed on 10-3-1999 to have the above-referred question decided by a Full Bench of this Court. Accordingly the present Bench was constituted to examine the above-referred question of law.
3. We have heard the learned counsel for convict/appellant, the complainant and the learned Assistant Advocate-General for the State.
4. The offence under section 302 has three parts. Under section 302(a) an accused can be punished with death as Qisas; under section 302(b) with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case if the proof specified in section 304 of the P.P.C. Is not available and under section 302(c) with imprisonment of either description up to 25 years where according to the Injunctions of Islam the punishment of Qisas is not applicable. By virtue of the provisions of section 345(2) of the Cr. P.C. The offence under section 302 of the P.P.C.
Has been made compoundable by the heirs of the Victim subject to permission of the Court. Before allowing composition of the offence the Court is duty bound to ascertain whether the compromise is genuine and made by the legal heirs of the deceased with their own free-will and whether the acquittal of the convict will be in the interest of the parties and the society. Once the above conditions are satisfied and the Court permits composition of the offence the convict has to be acquitted by virtue of the provision of subsection (6) of section 345 of the Cr.P.C. Which is reproduced below for ready reference:-- "The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded."
' The formal confession of guilt by the convict is not a condition precedent for permitting composition of the offence. The very fact that the convict did not. Press his appeal on merits and has begged the legal heirs of the deceased to be forgiven in the name of Allah implied acceptance of judgment of the trial Court. He cannot be put in the dock again and forced to confess his guilt before allowing composition of the offence. The question whether a convict is entitled to acquittal on the basis of compromise with legal heirs of the deceased came up for consideration before a Full Bench of this Court in the case of Muhammad Ashraf v. The State (PLD 1991 Lahore 347) which held as under:-- "The three appellants in the criminal appeals are, however, entitled to seek order of acquittal on the basis of compounding of the offence by the heirs of the victim as the case may be, if it is proved to the satisfaction of the Court/Bench hearing the appeal that the grant offoregiveness (URDU TEXT) through execution of Compromise Deed is outcome of free-will and consent. But the Court before passing the order of acquittal is duty bound to comply with the requirement of the duty cast by the proviso to section 338-E. The proviso reads:-- ' Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offence.'
' The apparent meaning of the proviso is that despite composition of the offence by way of Waiver (URDU TEXT) or Sulah-i-Badl (URDU TEXT) the Court may award punishment of imprisonment by way of Tazir, keeping in view circumstances of the case. Neither the quantum of imprisonment has been provided, nor the circumstances which are to be kept in view have been spelt out, nor any guiding principles have been laid down."
' The Court further examined the question whether power to award Tazir vests in a Qazi under Sharia. In case where the offender has been granted forgiveness or pardon by the victim or his (URDU TEXT) or has received ' Badl-iSulah' and held:-- "Neither from the reasons of some of the Jurist consults noted in clauses (a) to (d) nor from the opinion noted in the judgment and observations made in Gul Hassan's case, it follows that an unguided and unlimited power should be vested in the Court to award punishment of imprisonment by way of Tazir after grant of forgiveness (URDU TEXT) or receipt of (URDU TEXT) by the victim or the heirs of the victim as the case may be."
' The Court suggested that the Legislature should prescribe the acts of commission and omission or the attending circumstances of the offence due to which the offender will render himself liable to be punished with the. Additional punishment by way of Tazir. The Legislature has not done the needful so far. Therefore, the proviso to section 338-E of the P.P.C. Practically remains ineffective or inoperative. It appears that the provisions of section 345(6) of the Cr.P.C. Were not examined by the Court in Muhammad Ashraf's case. Apparently, there is a conflict in the provisions of section 338-E of the P.P.C. Which leaves the room open for the Qazi to acquit an accused on composition of an offence or award him punishment by way of Tazir. On the other hand, section 345(6) of the Cr.P.C.
Provides that after composition of the offence the convict has to be acquitted. There is no legal obligation on the convict to confess his guilt before composition of offence is permitted by the Court. The controversy was finally settled by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Irshad alias Shada v. The State (1997 SCMR 951). It was held as under:-- "During the pendency of the petition for leave to appeal, the parties compromised. The compromise pro forma was filed in the Jail Petition for leave to appeal which was forwarded to the learned Sessions Judge, Bahawalpur for verification, who after recording the statement of Attaullah, the father and Mst. Nasim Bibi, the mother of the deceased, has reported that the legal heirs have waived their right of Qisas compounded with the petitioner/accused.
' Father and mother of the deceased are present in Court. They own compromise and state to have waived their right of Qisas '(URDU TEXT)'. We are convinced that the compromise between the legal heirs of the deceased and the petitioner/accused is genuine. The composition of an offence under section 302, P.P.C. By the legal heirs of the deceased shall have the effect of acquittal of the accused with whom the offence has been compounded."
In view of the above stated legal position, we hold that the convict will deserve acquittal on the basis of his genuine compromise with the legal heirs of the deceased without formal confession of guilt by him. Reference is answered accordingly.
' Now the office will fix the appeal alongwith the miscellaneous application for composition of the offence for decision before an appropriate Division Bench of this Court.