1. ' The abovenamed applicants were booked for an offence under sections 302, 324 and 34, P.P.C. In Crime No,72 of 2000 of Police Station, Ranipur. The contents of F.I.R. Are reproduced below in extenso:-- ' "Complaint is that Sathi Khan is my brother who is aged about 60 years, there was dispute running over land between him and his sons since long. His son Shahzado had registered a case at Police Station, Ranipur about one year back, in which Sathi Khan was challaned and was in jail, he was released on bail month back, his sons had forbidden him that do not come to our home and his sons were infuriated upon him. My brother leaving his house used to live in Ranipur besides Allah Dino Junejo. Today I came to meet my brother in the meanwhile his sons each Shahzado and Rahim Bux came who told him that go with us to city to get prepared identity card then we myself, my brother Sathi Khan, his sons who had come and relative Maqbool son of Allandino were coming together to Ranipur when reached at near Gambat curve besides National Highway where Dur Muhammad son of Pandhi and Rustam son of Muhammad Waris Junejo, were standing with whom Shahzado and Rahim Bux went and meet them, they spoke separately then Dur Muhammad and Rustam went speedily towards National Highway side and we all went together to the Ghulam Qadir Junejo at his farm, where Sathi Khan told Ghulam Qadir that he has to get signed the National Identity Card forms of his sons from. Mukhtiarkar, Gambat, you tell him, the Ghulam Qadir telephone Mukhtiarkar, Gambat who was not available. Then we all 5 came to town after finishing work were going to village when at about 12 hours from National Highway Road reached at the link road coming to Bodla Mohalla in open plots in the meanwhile the same Dur Muhammad Rustam Junejo also came on their own motorcycle at National Highway Road. They coming near us stopped motorcycle alighted and came towards us in the meanwhile Shahzado took out pistol from his fold and Rustam, Dur Muhammad and Rahim Bux abusing told my brother Sathi Khan that today we shall not spare you and kill you and challenged stating that fire and Shahzado straight fired 2 fires upon his father Sathi Khan with intention to commit murder who due to hitting of fire fell down raising cries, myself and Maqbool raised cries on which Allandino son of Ghulam Hyder and Ramzan son of Mohkumdin came running, accused Shahzado asked us to keep quiet and also fired 2 fires upon Maqbool Ahmad with intention to commit murder who fell down. He saved due to felling on earth. Seeing above witnesses coming accused Shahzado alongwith pistol Rahim Bux towards northern side and Dur Muhammad and Rustam on their motorcycle towards eastern side, fled away. They were seen by above witnesses very well. Then we went and saw the fire shot on the right side ear which was passed through left side and second fire on chest which was passed through back and was died bleeding and writhing. Leaving above witnesses at the dead body of my brother to guard, am making complaint that the above 4 accused persons in league with each other at the annoyance of land have killed my brother Sathi Khan Junejo."
2. ' After usual investigation, the challan of the case was sent to the Court of learned Sessions Judge, Khairpur wherefrom it was transferred to the Court of learned Additional Sessions Judge, Gambat for its trial.
3. It is urged that applicants/accused and the legal heirs of the deceased patched up the differences through the intervention of the Nekmards of the vicinity as such the matter was compromised between them. As the result of compromise the legal heirs of the deceased waived the right of Qisas without any compensation. The legal heirs of the deceased and the above named applicant/accused moved joint application for allowing them to compromise the matter and thereafter the compromise application duly supported by the affidavits required under law of the legal heirs and applicants was filed before the trial Court.
4. ' That on the said application the learned trial Judge passed the impugned order, dated 27-11-2000 and ordered to proceed with the matter under sections 302 and 311, P.P.C. Attracting offence of Fasad-fil-Arz.
5. ' The learned counsel for the applicant/accused has relied upon the cases of Nazakat Hussain v.
6. The State PLD 1996 SC 178; Nazar Ali and others v. The State PLD 1992 Pesh. 176 and Manzoor Elahi v.
7. The State and others 2001 PCr.LJ 64.
8. ' The learned counsel for the complainant has opposed the revision application on the ground that complainant is real sister of the deceased. The deceased had got 30 Acres of land, a house in Deh Draza Sharif, due to disobedience of his sons they have been disowned by the deceased. Hence he was murdered.
9. Mr. Muhammad Bachal Tonyo, learned Additional Advocate-General, Sindh alongwith Mr. Nidamuddin Brohi appearing on behalf of the State have conceded for setting aside the order, dated 27-11-2001 and prayed for accepting the compromise application moved in the trial Court. It is further contended by him that the trial Court has neither accepted the compromise application nor rejected the same but it is observed that accused are not entitled to the acquittal and they should be tried for an offence of murder under section 302, P.P.C. Read with section 311, P.P.C.
10. ' It is to be examined whether after filing compromise application alongwith affidavits of the legal heirs, the trial Court was left with any power under section 311, P.P.C. Under section 345(2), Cr.P.C.
11. The offence under section 302, P.P.C. Has been made compoundable with the permission of the Court and the compromise is permissible by the legal heirs of the deceased. In the present case, the legal heirs of the deceased have filed their affidavits and they have confirmed the factum of compromise and waiver of Qisas under section 309, P.P.C. In view of clear-cut provisions of law there should be no impediment in the compromise. The provision of section 311, P.P.C. Is reproduced as under:-- "311. Ta'zir after waiver or compounding of right of Qisas in Qatl-i-Amd.--- Notwithstanding anything contained in section 309 or section 310 where all the Wali do not waive or compounded the right of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which extended to fourteen years at Ta'zir.
12. If the accused had killed their father on landed dispute, the heirs can be debarred from inheritance of their property according to Muhammadan Law. The complainant being real sister cannot be termed as legal heir as the deceased was not issueless, therefore, according to Muhammadan Law sons and daughters of the deceased are legal heirs.
13. ' The trial Court has misread and misunderstood the provision of section 311, P.P.C. The trial Judge was left with no option but to accept the compromise if the requirements are complete. Section 311, P.P.C. Is applicable in those cases where there is no compromise as a whole then discretion can be exercised by the Court. The legal heirs of the deceased have waived their right of Qisas without compensation under section 309, P.P.C.
14. ' With regard to waiver or compounding of offences Honourable Supreme Court in case of Nazakat Hussain v. The State (ibid) has observed the guidance for the subordinate Courts. The same is reproduced as under:--
(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 meaning of sections 309 and 310, P.P.C. During the pendency of appeal, applications 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 heirs 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 waiver 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.
15. It is also advantageous to reproduce sections 309 and 310, P.P.C. Pertaining to the waiver and compounding of right of Qisas:-- "309. Waiver-Afw of Qisas in Qatl-e-Amd.--- (1) In the case of Qatl-eAmd, an adult sane Wali may, at any time and without any compensation, waive his right of Qisas: ' Provided that the right of Qisas shall not be waived--(a) where the Government is the Wali; or
(b) where the right of Qisas vests in a minor or insane.
(2) Where a victim has more than one Wali, any one of them may waive his right of Qisas; ' Provided that the Wali who does not waive the right of Qisas shall be entitled to his share of Diyat.
(3) Where there are more than one victim, the waiver of the right of Qisas by the Wali,of one victim shall not affect the right of Qisas of the Wali of the other victim.
(4) Where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas against the other offender."
16. "310. Compounding of Qisas (Sulh) in Oatl-e-Amad.--- (1) In the case of Qatl-e-Amd, an adult sane Wali may, at any time on accepting Badal-e-Sulh, compound his right of Qisas; ' Provided that giving a female in marriage shall not be a valid Badale-Sulh."
(2) Where a Wali is a minor or an insane, the Wali of such minor or insane Wali may compound the right of Qisas on behalf of such minor or insane Wali: ' Provided that the value of Badal-e-Sulh shall not be less than the value of Diyat.
(3) Where the Government is the Wali, it may compound the right of Qisas; ' Provided that the value of Badal-e-Sulh shall not be less than the value of Diyat.
(4) Where the Badal-e-Sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of Qisas shall be deemed to have been compounded and the offender shall be liable to Diyat.
(5) Badal-e-Sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the Wali."
17. It is obvious that there was compromise in respect of compounding of Qisas as well as compounding of offence and it was incumbent upon the trial Court to pass necessary orders under section 345(6), Cr.P.C. And acquit the accused.
18. ' The trial Court has wrongly applied the provisions of Fasad-fil-Arz without collecting any evidence pertaining to the past conduct and previous convictions etc. From the perusal of the order, dated 27-11-2000, it is clear that the trial Court has neither accepted the compromise application nor rejected the same. It is mandatory upon the Court to examine as to whether any person is or is not the legal heir of the deceased. These facts shall be determined by the Court competent' to receive application on the basis of waiver or compromise between the parties.
19. ' It appears that the compromise of present applicants has been refused under discretionary powers of the Court under section 311, P.P.C. The Court should not act and insist upon the strict phrases of provisions of law relating to discretion which may bring some unpleasant result in future.
20. ' Therefore, the order dated 27-11-2000 passed by the trial Court is set aside and Sessions Case No,222 of 2000 is transferred from the Court of learned Additional Sessions Judge, Gambat to the Court of learned Sessions Judge, Khairpur with a direction to hear the concerned parties and pass necessary order in respect of compromise application according to law.
21. ' The present revision application is disposed of in above terms.