KHALIL-UR-REHMAN RAMDAY, J.---Muhammad Nazeer alias Jeera, Ali Abbas alias Raja, Muhammad Ali alias Ali and one Faisal were tried by the learned Special Court No,II at Gujranwala established under the Anti-Terrorism Act of 1997 for having kidnapped three minor boys, namely, Muhammad Bilal aged about 8 years; his brother Muhammad Shafiq aged about 10 years and one Muhammad Arshad aged about 9 years and then having murdered them. Through his judgment dated 18-12-1999, the said learned trial Judge found all the said four accused persons guilty of the charge under section 364, P.P.C. And punished each one of them with 10 years' R.I. On three counts and a fine of Rs,10,000 on three counts or to suffer two years' R.I. In default of payment, of fine on each count. All the said four accused persons were also found guilty of Qatl-i-Amd of all the three abovementioned deceased boys. Nazeer accused was consequently convicted under section 302, P.P.C. And was punished with death on three counts with a further direction to him to pay Rs,3,00,000 as compensation or to undergo ten years' R.I. In default of payment thereof. This amount of compensation was ordered to be paid to the legal heirs of the three deceased persons in equal shares. Each one of the other three accused persons, namely, Muhammad Ali, Faisal and Ali Abbas being less than 18 years of age were convicted under section 302(c) of the P.P.C. For the abovementioned three murders and each one of them was consequently directed to suffer 25 years (imprisonment for life) on three counts. These sentences of imprisonment on three counts were, directed to run concurrently.
2. All these accused persons were, however, acquitted of the charge under section 12 of Ordinance No,VII of 1979.
3. Murder Reference No,53-T of 2000 seeks confirmation of the sentences of death awarded to Nazir convict who approached this Court with Criminal Appeal No,1292 of 1999 impugning the above- noticed conviction and punishments recorded against him. Ali Abbas convict filed Criminal Appeal No, 1295 of 1999 for the same purpose. Faisal and Muhammad Ali convicts, however, appear not to have filed any appeal before this Court. All these matters are being disposed of together through this single judgment.
4. During the pendency of these matters before this Court it was submitted through Criminal Miscellaneous No,1161-M of 2000 that the heirs of all the three deceased persons had entered into a compromise with all the four convicts and it was consequently prayed that the appellants be acquitted accordingly.
5. The heirs of the three deceased persons appeared before us today. Certificates dated 16-9-2000 issued by the Tehsildar of Gujranwala were also placed on record verifying the list of the heirs of the three deceased persons.
6. As has been mentioned above, Muhammad Bilal and Muhammad Shafiq aged about 8 and 10 years respectively were real brothers. They were minor boys at the time of their murder and were thus obviously not married. Muhammad Siddique is their father while Mst. Zubaida is their mother.
They are thus the only two legal heirs of the said deceased boys. The third deceased person of the present case, namely, Muhammad Arshad was also a young boy being about nine years of age. He was also survived only by his two parents, namely, Muhammad Boota being his father and Mst.
Munawar Bibi being his mother.
7. Muhammad Siddique and Mst. Zubaida Bibi i,e, the two parents of Bilal and Shafiq deceased made statements before us on Oath which have been separately recorded after each one of them had been identified by Mr. Muhammad Ashiq Aasi, Advocate. Both of them declared that being the only heirs of Bilal and Shafiq deceased they have entered into a compromise with all the four convicts, namely, Nazeer, Ali Abbas, Faisal and Muhammad Ali and that each one of them had granted Afw to each one of these four convicts with respect to the Qatl-i-Amd of Bilal and Shafiq deceased in the name of Allah and each one of them prayed that the four, convicts be accordingly acquitted.
8. Similar was the position of Muhammad Boota and Mst. Munawar Bibi, the father and mother respectively of Muhammad Arshad deceased who also deposed that both of them had entered into a compromise with all the four convicts in the name of Allah with respect to the murder of Arshad deceased and having granted AFW to each one of the said four convicts, prayed that each one of them be acquitted.
9: We are satisfied with the voluntary nature of the above-noticed compromise reached between the parties as also of the voluntary nature of the statements made before us.
10. Before we proceed any further, it may be mentioned here that the learned counsel for the appellants elected not to impugn the above-noticed conviction and punishments recorded against the appellants on the factual plane and rightly so, as per the record. Acquittal of the appellants was thus sought only on the strength of the abovementioned compromise reached between the parties.
11. We now proceed to examine and consider the effect of the said compromise on the said conviction and punishments.
12. The offence punishable under section 364, P.P.C. Is not compoundable. Therefore, the above- referred compromise has no bearing on the conviction and the punishments awarded on the said charge. The question of quantum of punishments shall be considered in the later part of this judgment.
13. The offence punishable under .Section 302, P.P.C. Is however compoundable but the acquittal of a person accused of a murder charge is never the automatic result of every such compromise. A WALI of a deceased person while entering into, a compromise with the culprit with respect to a QATL-I-AMD has two options. He can either grant AFW to the murderer or he can compound the said offence on accepting BADAL-E-SULH. In either of these cases the effect is only the waiver of the right of OISAS. The acquittal in case of a compromise is regulated by the provisions of section 345 of the Code of Criminal Procedure. Subsection (2) of the said section 345, Cr.P.C. Provides as under:
(2) "The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following MAY, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table:-"
(The emphasis and underlining is mine).
' It will thus be noticed that compounding of the offence of QATL-I-AMD is subject to the permission of the Court concerned and it is always open to the competent Court to withhold permission for the compounding of such an offence. There are then the. Provisions of section 311, P.P.C. Which envisage punishment of an offender by way of TA'ZIR despite a compromise between the heirs of a deceased person and his killer if all the heirs did not join in the said compromise or if according to the facts and circumstances of the case the act of the criminal fell within the purview of FASAD-FIL- ARZ.
14. What is thus deducible from the above-noticed provisions is that after a compromise has been reached between all the heirs of a deceased person and the offender, the Courts of law are not permitted to blindly act upon the said compromise and to acquit the culprit. The Courts of law are expected to consider all the attending facts and circumstances of the case and then to decide whether in the given situation the Court should or should not grant permission for the compounding of the offence. The Courts are also obliged to decide whether the case falls within the ambit of the provisions of section 311, P.P.C. And whether the offender despite the compromise, deserved to be punished by way of TA'ZIR under the said provisions of law.
15. The crux of the prosecution story in the present case is that Nazir appellant who was an oldish person was in the habit of abusing children by, alluring small children and then getting his body massaged from them and by also indulging in sexual affairs with them. The three other convicts in the present case are young boys who were used by Nazir appellant to entice away small children and to bring them to him. Nazir appellant's lust in the present case had resulted in the death of three minor children whose bodies had been recovered at his instance. He invokes no sympathy and does not qualify for the grant of any discretionary relief by this Court. We, therefore, refuse to grant permission for the compounding of the OATL-I-AMD in question in terms of section 345(2) of the Cr.P.C.
16. Since, as noticed above, the heirs of all the three deceased boys have granted pardon to all the four convicts, therefore, in view of the provisions of section 309, P.P.C. The punishment of OISAS ceases to be applicable. In case of Nazir appellant, consequently, the conviction and punishments as recorded against him under section 302, P.P.C. Are set aside. He is, however, convicted under section 302(c) of the P.P.C. And is directed to suffer 20 years (twenty years') R.I. On each of the three counts. As no proof was brought on record regarding the financial status of Nazir appellant, therefore, the amount of compensation directed to be paid by him is reduced to an amount of Rs,50,000 on each count which amount of compensation shall be paid to the legal heirs of each deceased person. In case this amount of compensation is not paid then Nazir appellant shall suffer six months' S.I. On each count.
17. The other three convicts, namely, Ali Abbas, Faisal and Muhammad Ali were convicted by the learned trial Judge under section 302(c), P.P.C. Being less than 18 years of age and each one of them had been punished with 25 years' imprisonment. Their convictions on the said charge are maintained but considering that they were small children themselves who were being misused by Nazir appellant for alluring other children and also considering the fact that the heirs of all the three deceased boys had granted pardon to them, the sentence of 25 years' R.I. Awarded to each one of these convicts, namely, Ali Abbas, Faisal and Muhammad Ali on three counts, is reduced to imprisonment of six years' R.I. On each of these three counts. In "iew of the peculiar facts of this case we are not directing payment of any compensation by Ali Abbas, Faisal and Muhammad Ali convicts.
18. As has been noticed above, the offence punishable under section 364, P.P.C. Is not compoundable. Therefore, the conviction of all the four above-described convicts under section 364, P.P.C. Is maintained. Nazir appellant deserves no mercy. Therefore, punishment awarded to him on the said charge by the learned trial Court is also maintained. The sentences awarded to the other three convicts under section 364 P.P.C. Are, F however, reduced to six years' R.I. On each count.
The amount of fine directed to be paid by these three convicts is also reduced to an amount of Rs,5,000 or six months' S.I. On each count.
19. The sentence of imprisonment awarded to all the four convicts under section 302(c), P.P.C., on three counts, shall run concurrently with each other. These sentences of imprisonment shall also run concurrently with the sentences of imprisonment awarded to the said four convicts under section 364, P.P.C. Each of these four convicts shall be allowed the benefit of the provisions of section 382-B, Cr.P.C.
20. As has been mentioned above, Faisal and Muhammad Ali convicts had not filed any appeals against their conviction and punishments and only Muhammad Nazir and Ali Abbas convicts were before us as appellants impugning the conviction and punishments recorded against them.
Despite this we have reduced the quantum of sentences awarded to Faisal and Muhammad Ali convicts in view of the fact that the heirs of all the three deceased persons had granted pardon even to these two convicts and their cases were thus not distinguishable from the case of Ali Abbas appellant. This we have done in exercise of the powers vesting in this Court under section 439, Cr.P.C.
21. Before we part with this judgment we would like to express our displeasure over the knowledge of law displayed by the learned trial Judge (Ch. Muhammad Shafiq) through his judgment in the present case. He had directed Nazir appellant to pay a compensation of Rs,3,00,000 relating to the charge under section 302, P.P.C. And had ordered him to suffer 10 years' R.I. In default of payment of this compensation. The learned trial Judge appears to be ignorant of the provisions of section 544- A, Cr.P.C. Which permit a maximum imprisonment of six months in default of payment of compensation. While awarding 25 years' R.I. To the other convicts under section 302(c), P.P.C. He had described the said sentence of 25 years' R.I. As life imprisonment. The learned trial Judge had perhaps never noticed the provisions of section 53, P.P.C. According to which provisions a sentence of imprisonment for life was a punishment different from any other imprisonment even if the same extended to 25 years.
22. A copy of this judgment shall be sent to the learned trial Judge for his information and guidance.
23. Murder Reference No,53-T of 2000 and Criminal Appeals Nos.1292 and 1295 of 1999 are disposed of in the above terms.
Sentence of death is not confirmed. 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.