' This appeal is directed against the judgment of learned Sessions Judge, Haripur, dated 6-10-1999 whereby the appellant was convicted and sentenced to imprisonment of 5 years' R.I. On each count. The punishment was to run consecutively with benefit of section 382-B, Cr.P.C.
2. On 30-12-1996, S.H.O., Police Station Ghazi at 11-45 hours received telephonic message from one Iqbal Khan that some one had slaughtered his kids. He informed the D.S.P. About the occurrence and went towards the place of occurrence accompanied by other police party. Near Pahi Dara in Khutera there many people had gathered. One person who had allegedly slaughtered his kids was also present who on inquiry disclosed his name as Manzoor Ilahi son of Muhammad Farid to the S.H.O. And stated that he had slaughtered his daughters. The said S.H.O. Recorded his statement in presence of witnesses. After registering case vide F.I.R. No,216 on 30-12-1996 at Police Station Ghazi he started investigation of the case.
3. On submission of complete challan the learned trial Court summoned the accused and framed charge to which he did not plead guilty and claimed trial. In support of its case the prosecution in all examined 10 witnesses. It was during the trial that the legal heirs of deceased affected a compromise with the appellant and pardoned him. They waived their right of Qisas. The learned Sessions Judge accepted the compromise. Since the appellant had murdered his three daughters, therefore, he was convicted and sentenced to imprisonment of 5 years' R.I. On each count. It was directed that the punishment would run consecutively and benefit of section 382-B,. Cr.P.C. Was also given to the appellant. The appellant has now challenged the judgment, dated 6-10-1999 whereby he was convicted and sentenced through appeal in hand.
4. Mr. Abdullah Jan Mirza, Advocate, the learned counsel representing the appellant argued that the legal heirs of deceased had forgiven the appellant and the compromise had been accepted by the learned trial Court, therefore, the learned trial Court was left with no option but to acquit the accused.
5. It was further argued that there exists a distinction between compounding of Qisas under section 310, P.P.C. And compounding of offence under section 345, Cr.P.C. Since the learned trial Judge had accepted both, therefore, he was obliged under the existing law to acquit the appellant specially when he was not a previous convict and habitual criminal. The conviction and sentence was unwarranted by law, hence need reversal.
6. On the other hand, Mr. Ayub Khan, the learned A.A.-G. Argued that the learned trial Judge no doubt accepted the compromise but in view of section 311, P.P.C. Convicted the appellant. The conviction order is in accordance with law and needs no interference.
7. I have heard the learned counsel for the parties and perused the record.
8. It is on record that Mst. Fuqraj Bibi wife of appellant filed an application on 30-6-1999 for affecting compromise. This application was duly supported with affidavit. On 3-7-1998 she again preferred an application for submitting written compromise. Statement of Mst. Fuqraj Bibi and elders of family were recorded by the learned trial Court on 11-6-1997, 3-7-1998 and 30-6-1999. The learned trial Court found the said compromise as genuine and in the interest of the parties and the prosecution also did not raise any objection to the said compromise, hence it was accepted by the learned trial Court.
9. The question which needs determination is as to whether after the acceptance of compromise the trial Court was left with any powers under section 311, P.P.C. To convict the appellant or not.
Under section 345(2), Cr.P.C. 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 case in hand, the legal heir of deceased has filed her affidavit in which she has confirmed the factum of compromise and waiver of Qisas under section 309, P.P.C. Since the legal heir of deceased has compromised with the appellant, therefore, in view of clear cut provisions of law there should be no impediment in the compromise. So far as the provisions of section 311, P.P.C.
Are concerned which are reproduced hereunder for convenience:--
311. Ta'zir after waiver or compounding of right of Qisas in Qatl-i-Amd.---. Notwithstanding anything contained in section 309 or section 310 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 may extend to ten years as Ta'zir.
' Provided that, the Court may punish an offender who is previous convict, habitual or professional criminal, with imprisonment of either description for a term which may extend to fourteen years as Ta' zir. "
' The learned trial Court has misread and misunderstood the provisions of section 311, P.P.C. After having allowed the compromise. The trial Judge was left with no option but to accept the compromise. Section 311 is applicable in those cases where there is no compromise regarding the case as a whole and only right of Qisas is waived under section 309, P.P.C. Or there is a compounding right of Qisas under section 310, P.P.C. Then only the discretion provided under section 311, P.P.C. Becomes available.
10. The question of waiver or compounding of offence came up before august Supreme Court of Pakistan in Nazakat Hussain v. The State PLD 1996 SC 178. While dismissing the petition as being barred by time and being misconceived the august Supreme Court of Pakistan with regard to waiver or compounding of offences laid down following guidelines:--
(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 heir 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.
11. In the case in hand the compromise was not only in respect of compounding of Qisas but it was in respect of compounding of offence also. Since the learned trial Judge had granted the permission and also accepted the compromise, therefore, the only option left with the trial Court was to pass necessary orders under section 345(6), Cr.P.C. And acquit the accused.
12. The learned trial Court after recording the statement of Mst. Fuqraj Bibi and elders of the family found the compromise genuine and in the interest of parties and in paragraph No,20 of the judgment accepted the compromise vide judgment, dated 6-10-1999 and the prosecution did not raise any objection to the said compromise, therefore, the conviction and sentence awarded to the appellant is set aside and the appellant is acquitted under section 345(6), Cr.P.C. On the basis of compromise. The appellant be released forthwith, if not required in any other case.
Accused acquitted.