' This judgment will dispose of Criminal Appeal No,55/J of 1999 directed against the judgment, dated 9-12-1998 passed by learned Additional Sessions Judge, Sargodha, whereby the appellant was convicted under section 308(2), P.P.C. And sentenced to 14 years with further direction to pay compensation of Rs,20,000 and in default six months' S.I. The benefit of section 382-B, Cr.P.C. Was also given to the appellant.
2. Occurrence in this case had taken place at 1-30 a.m. (mid-night) on 26-6-1997 within the jurisdiction of Police Station Kot Moman, District Sargodha while the matter was reported by Chota Khan at 5-30 a.m. The same day and the formal F.I.R. Exh.P.F. Was recorded by Muhammad Aiam, S.-I.
3. Briefly stated the facts of the case are that Chota Khan, the complainant was resident of Hujjan and was labourer by profession. His daughter Mst. Mumtaz Bibi was married to Fazal Hussain alias Fazloo 24/25 years prior to the occurrence. Three sons, namely, Khalid Pervaiz, Javaid Iqbal, Zahid Iqbal and three daughters namely Shazia, Nazia and Shahnaz were born as a result of this wedlock that were alive. There was a family dispute between accused Fazal Hussain and his wife Mst.
Mumtaz Bibi upon the settling of marriages of their daughters and sons. Fazal Hussain wanted to get marry his children in the family of his brothers and sisters whereas Mst. Mumtaz Bibi wanted to marry her sons and daughters in her own brotherhood. On the night between 25/26th June, 1997, a dispute arose between Fazal Hussain and Mst. Mumtaz Bibi and the complainant went to their house at about 10/11 p.m. And advised both Fazal Hussain and Mst. Mumtaz Bibi and also slept there in the courtyard of their house. At about 1-30 a.m. (mid-night) the complainant woke up suddenly and saw that Fazal Hussain armed with a Toka was standing near the cot of Mumtaz Bibi and in his view, Fazal Hussain gave a Toka blow on the left side of neck of Mumtaz Bibi. The second Toka blow given by Fazal landed on the left side of head, cheek and back side of her ear. On hue and cry of the complainant, Muhammad Ashraf and Muhammad Saleem P.Ws. Attracted to the place of occurrence and witnessed the occurrence.
' The motive behind the occurrence was a family dispute. Mst. Mumtaz Bibi succumbed to her injuries at the spot.
4. Investigation of the case was taken over by Muhammad Azam, S.-I. (P.W.11). After registration of the case he went to the place of occurrence and found the dead body of Mst. Mumtaz lying there.
He prepared injuries statement Exh.P.G., inquest report Exh.P.H. And from the place of occurrence took into possession blood-stained earth vide memo. Exh.P.J. Fazal Hussain accused was arrested on 6-7-1997. He in custody led to the recovery of Toka P.1 (blood-stained) which was taken into possession vide memo. Exh.P.D. He also prepared the rough site plan of the place of occurrence Exh.P.K. And after completion of the remaining formal investigation, challaned the accused to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.P.L., Exh.P.M. Reports of the Serologist Exh.P.N., Exh.P.P. And closed the prosecution case. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded innocence. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant in support of this appeal submits that the deceased was wife of the appellant, that there are six children out of the wedlock and out of them, two are major and four are minors. He submits that an application for compromise was submitted before this Court wherein report was called from the learned Sessions Judge concerned who had submitted the report stating therein that all the legal heirs of the deceased including the parents of the deceased and her two major sons have entered into compromise with the appellant without any duress or coercion and have pardoned the appellant in the name of Almighty Allah without getting any compensation. He further submits that even the grand-parents of the four minor children being their guardian have waived their right of Qisas also and have pardoned the appellant. He has also relied upon 1993 PCr.LJ 166 Full Bench judgment of Supreme Appellate Court titled as Muhammad Hanif v. The State and. Muhammad Arif v. The State 2001 PCr.LJ 1804. Learned counsel for the appellant submits that appellant is a very poor man and he is not in a position to pay the amount of Diyat which is Rs,80,000. He submits that the appellant is the real father of the minors.
7. On the other hand learned State Counsel after hearing the learned counsel for the appellant in open Court submits that he has no objection to the compromise in view of the judgment of the Supreme Appellate Court as stated above.
8. I have heard the learned counsel for the parties. Appellant is a poor man and he has shown his profession as labourer. The deceased was his wife. Six children were born out of the wedlock out of them two are major sons and four are minors. When the application for compromise was submitted a report in this regard was called from the learned Sessions Judge, Sargodha who had also stated that the grand-parents of the minors have also waived their right of Qisas and have pardoned the appellant in the name of Allah (Almighty).
9. After having heard the learned counsel for the parties and also going through the record, specially judgments cited by the learned counsel for the appellant, I consider this matter as a case in which Diyat amount can be remitted. In view of the abovesaid circumstances and specially keeping in view the fact that appellant is father of four minors and he, after being released from jail, not only will look after the minors but he will have to feed them and it will be difficult for him to pay the Diyat amount, even the judgments cited above also support the contention of the learned counsel for the appellant.
10. The nutshell of the above discussion is that this appeal is accepted and as far as Diyat amount is concerned, as grand-parents of the minors have entered into compromise with the appellant on behalf of the minors and learned State Counsel has no objection in this regard, the same is set aside. With these observations this appeal stands disposed of. If the appellant has already undergone the sentence of imprisonment of 14 years, then he shall be released forthwith if he is not required in any other case.