' KHALIL- UR- REHMAN RAMDAY, J.---One Muhammad Nazir who stood accused of the commission of an offence punishable under section 9 of the Control of Narcotic Substances Act, 1997 vide F.I.R.
No,103, dated 14-4-2001 of Police Station People's Colony, Gujranwala approached this Court through Criminal Miscellaneous No,3740/B of 2001 praying for his release on bail after arrest. During the course of hearing of the said bail petition it was argued on 3-9-2001 that the above-mentioned case had been falsely fabricated against the said Muhammad Nazir accused at the instance of one Muhammad Idrees, H.C. Who was posted at the above-mentioned Police Station People's Colony, Gujranwala and who was even a member of the raiding party which had allegedly apprehended Muhammad Nazir accused with one kilogram of Charas. It was added that Muhammad Idrees had murdered a maternal uncle of Nazir accused with respect to which murder an F.I.R. Bearing No,735, dated 8-10-1997 was registered at Police Station Satellite Town, Gujranwala and that since the petitioner used to pursue the said murder case of his maternal uncle, namely, Muhammad Ali deceased, therefore, the said Muhammad Idrees, H.C. Had manoeuvred the false involvement of the said Muhammad Nazir in the said narcotics case. It was further added that this Muhammad Idrees, H.C. Had himself been involved in narcotics case vide F.I.R. No,357, dated 20-7- 2001 of Police Station Satellite Town, Gujranwala.
2. In order to verify the worth of these submissions relating to the alleged malicious implication of the said Muhammad Nazir accused in the said narcotics case, we requisitioned the record of the above-mentioned two criminal cases involving the said Muhammad Idrees, H.C. And also directed his appearance before this Court.
3. The record of these two cases was produced before us on 19-9-2001 when the said Muhammad Idrees, H.C. Was also present in person. On our question he submitted that with respect to the narcotics case registered against him vide the above-mentioned F.I.R. No,357 of 2001 he was on interim pre-arrest to him by a learned Additional Sessions Judge at Gujranwala and with respect to the above-mentioned murder case he submitted that he had since been acquitted and also produced before us the judgment of acquittal passed by a learned Additional Sessions Judge at Gujranwala on 29-9-2000.
4. Having gone through the said judgment of acquittal we found that the said acquittal proceeded from an alleged compromise reached between the heirs of Muhammad Ali deceased and Muhammad Idrees, H.C./accused and we further found that three out of the eight daughters surviving the said deceased were minor and that the right of Qisas could not have been waived on their behalf under section 309, P.P.C. As had been done in the said case. Therefore, exercising powers vesting in this Court under section 439, Cr.P.C. We issued notice to the said Muhammad Idrees to show cause why the said acquittal recorded in his favour be not set aside. He was present in Court and accepted the said notice.
5. He is present today with his learned counsel and has been heard.
6. From the above-mentioned judgment/order of acquittal, dated 29-9-2000 of Rao Shafey Ali Khan, a learned Additional Sessions Judge at Gujranwala it transpires that it had been claimed that legal heirs of Muhammad Ali deceased had entered into a compromise with Idrees accused.
From the record it further transpires that . The said Muhammad Ali deceased had been survived by his widow, namely, Mst. Rukia Bibi; by his son namely, Khalid Pervaiz and by his eight daughters, namely, Mst. Nargis Bibi, Mst. Naila Bibi, Mst. Azmat Bibi, Mst. Ulfat Bibi, Mst. Asmat Bibi, Mst. Shamila Bibi, Mst. Rehana Bibi and Mst. Kauser Bibi and further that the last-mentioned three daughters of the said deceased were minor.
7. Mst. Rukia, Khalid Pervaiz and the `five adult daughters of the said deceased appear to have appeared before the learned trial Judge on different dates of hearing whose statements were recorded by the learned trial Judge. Each one of them claimed to have granted AFW to Idrees accused in the name of Allah.
8. Although it has been mentioned by the learned trial Judge in the judgment of acquittal, dated 29-9-2000 that Mst. Rukia Bibi widow of the deceased had forgiven the accused in the name of Allah and waived the right of Qisas even on behalf of her minor daughters, yet there is no mention in the statement of the said Mst. Rukia Bibi recorded on 15-7-1999 that she had compounded the murder in question even on behalf of her minor daughters. We have put our initials on her said statement, dated 15-7-1999.
9. This acquittal recorded in favour of Muhammad Idrees accused is bad in law for more than one reasons. Firstly because it proceeds on the mistaken impression that the widow of Muhammad Ali deceased namely, Mst. Rukia Bibi had declared to have compounded the offence in question on behalf of her minor daughters. As has been noticed above, no such thing is available in the statement made by Mst. Rukia Bibi. Secondly, presuming for the sake of arguments, that she had said so, even then any such compounding of the offence in question on behalf of a minor by the mother is not legally tenable because of the provisions of section 313, P.P.C. Which provided that if a Wali was a minor then the offence in question be compounded on his/her behalf by the father or if he not be alive then by the paternal grandfather howhighsoever and if he be not alive then by a guardian appointed by the competent Court. There is nothing on record which could suggest that the widow of the deceased stood appointed as a guardian of the minor girls in question by any competent Court. It may be mentioned here that it was admitted before us that the said widow never stood appointed as a guardian of the said minor daughters of Muhammad Ali deceased.
Thirdly, in view of the provisions of section 309, P.P.C. Even a valid Wali of a minor could not waive the right of Qisas on behalf of a minor without compensation. Admittedly and even as per record no compensation at all was paid to the minor daughters of the deceased oaf the present case.
10. In view of what has been noticed above, the acquittal recorded in favour of Muhammad Idrees accused was illegal. Consequently, the judgment/order of acquittal, dated 29-9-2000 passed by Rao Shafey Ali Khan, learned Additional Sessions Judge. Gujranwala in the case emanating from F.I.R. No,735, dated 8-10-1997 of Police Station Satellite Town, Gujranwala is set aside. Resultantly the acquittal of Muhammad Idrees accused is also set aside.
11. He is present in Court and shall be taken into custody whereafter he shall be lodged in District Jail, Gujranwala for being treated in accordance with law. We are conscious of the fact that Muhammad Idrees accused was on bail during the course of the trial in question but we are directing his arrest in view of the fact that the bail/surety bonds submitted by him had been cancelled and the sureties had been discharged at the time of his acquittal.
12. The record of the learned trial Court shall be sent back to the learned Sessions Judge of Gujranwala for a fresh trial in the case in question in accordance with law.
13. This disposes of Criminal Miscellaneous No,1801-M of 2001.
14. Before we part with this judgment, we must express our displeasure about the knowledge of law displayed by the learned trial Judge (Rao Shafey Ali Khan). He was obviously not conscious of the provisions of section 313 or the provisions of section 309 of the Pakistan Penal Code. He was also negligent in not having properly read the statement in question of the widow of Muhammad Ali deceased, namely, Mst. Rukia Bibi which statement had been recorded on 15-7-1999 because he had claimed through his judgment of acquittal that Mst. Rukia Bibi had compounded the offence in question on behalf of her minor daughters while nothing of the sort existed in the said statement.
The learned trial Judge is directed to improve his knowledge of law and also to be more careful while administering justice and deciding cases.
15. A copy of this judgment shall be sent to the said learned trial Judge for his information and guidance while another copy of this judgment shall be placed by the Registrar of this Court on the service record of the said learned trial Judge.
Acquittal set aside.