ZAFAR PASHA CHAUDHARY, J.---This judgment will dispose of Murder Reference No238-T of 2000, Criminal Appeal No,325 of 2000, Criminal Appeal No,391 of 2000 alongwith Criminal Miscellaneous No,900-M of 2000.. Three accused persons namely Ihsan son of Din Muhammad, Muhammad Arif and Wan son of Abdul Majeed were sent up to face trial in case F.I.R No,1373 of 1998 dated 30-12- 1998 under sections 3021201/377/34, P.P.C. registered with Police Station Jaranwala.The learned Special Judge under Anti-Terrorism Act, 1997 Ch. Muhammad Ikram, on conclusion of the trial convicted Ihsan and in accused- appellant under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and sentenced them to death. Both Were also convicted under section 377, P.P.C. and sentenced to life imprisonment each. Further convicted under section 302(b)/34, P.P.C.. and both sentenced to death, they were further ordered to pay Rs,1,00,000 (Rupees one lac) each as compensation to the legal heirs of the deceased, in default whereof both of the convicts to further undergo seven years' R.I. each. Both of the accused appellants were further convicted under section 7(ii) of Anti-Terrorism Act, 1997 and both sentenced to death, with a fine of Rs,1,00,000 (Rupees one lac) each, in default whereof to further undergo R.I. for seven years.
The co-accused Arif was, however, acquitted of the charges against him by extending him the benefit of doubt.
2. Murder Reference No,238-T of 2000 has been submitted by the learned trial Court seeking confirmation of death sentence. Criminal Appeal No,325 of 2000 had been filed by Ihsan and Irfan co-convicts through Sardar Muhammad Latif Khan Khosa, Advocate which was registered with the office on 24-3-2000. Ihsan accused appellant anyhow, filed another (separate) Criminal Appeal No,391 of 2000 through Mr.Qamar Zaman Qureshi, Advocate- which was registered with the office on 27-3-2000. All the matters were pending adjudication when Criminal Miscellaneous No,900-M of 2001 was moved under section 345 of Cr.P.C. praying that the legal heirs of the deceased Altaf Hussain have effected a compromise, they have compounded the offence and have forgiven the convicts appellants in the name of Allah Almighty. It was undertaken that shares of the three minor brothers of the deceased who were under custody and guardianship of their mother, will be deposited in some profit yielding account.
Copy of the petition alongwith relevant Annexures was transmitted to the learned Judge, A.T.A., Faislabad to hold an inquiry in order to verify the factum of compromise and forgiveness to the accused. The learned Special Judge pursuant to the said direction submitted his report on 5-7- 2001. After receipt of the report on 7-11-2001 Mst. Haleema and Mst. Shehnaz mother and sister of the deceased appeared in Court. As three of the brothers of the deceased were minor, therefore, in order to secure their shares of Badl-e-Sulh, it was ordered that shares of the three minors out of Rs,5,00,000 (Rupees five acs) Badl-eSulh, be deposited in some National Saving Centre and Saving Certificates be purchased in their names encashable by them on their attaining maturity.
The same was done and copies of Certificates in respect of shares of minors have been placed on the file.
3. The learned Special. Judge obtained pedigree-table of the deceased through Tehsildar and S.H.O., Police Station Jaranwala. The statements of the legal heirs were recorded whereby all the legal heirs unanimously endorsed the effecting of compromise and admitted that they have forgiven both of the convicts-appellants Ihsan and Irfan. Statements were recorded under oath, which- were attached with the report. Mst. Shehnaz Bibi aged about 18/20 years appeared in Court and deposed on oath that her brother Altaf Hussain deceased had been murdered and the above noted case was registered against both the appellants. She further submitted that she (Mst.Shehnaz), her mother (Mst.Haleema Bibi) and three brothers namely Gulzar 17 years, Shahzad 15 years and Ali Hassan 13 years are all minors. Mst. Haleema Bibi was guardian and they were being brought up by her. She stated that she as well as other legal heris have pardoned the accused persons in the name of Allah Almighty. They have effected a compromise voluntarily. They prayed that they did not intend to pursue the appeal and have no objection if the appeals are allowed and convicts/appellants are acquitted of the charges. It was added that the pardon had been granted in order to have friendly relations with the accused and their other family members.
All the other legal heirs also made similar and identical statements and endorsed the compromise by stating that same has been effected in order to have good relations and harmony in between the two parties i.e. convicts-appellants and the deceased. It was further stated that they have no objection if the appeals are allowed and they are acquitted of the charges.
4. After going through the statements of the legal heirs/Wali of the deceased and perusing the covering report submitted by the learned Special Judge, we have no doubt in our minds that legal heirs enumerated in the report and stated by the witnesses are the only legal heirs. They appear to have effected a compromise without any external pressure or duress and same has been done in order to restore amicable relations in between the parties. We are of the firm view that acceptance of the compromise will promote harmony and goodwill in between the parties, and the same will also ensure peace and tranquillity in the vicinity. We have, therefore, no objection to accept the compromise and permit the compounding of the offence, the same is accordingly granted.
5. At this juncture a question has arisen, as is evident from the convictions recorded against the appellants that they have been convicted under 'Section 302, P.P.C. which is compoundable under sections 309/310, P.P.C. read with section 345. P.P.C. But the legal heirs have not specified under what sections or which of the offence has been compounded. The fact, however, remains that offences according to the legal heirs have been compounded under all the sections and they have prayed for acceptance of the appeals and acquittal of the appellants. It would be pertinent to mention here and also as noted above that Saving Certificates in the names of the minors have also been purchased, therefore, their shares out of Badl-e-Sulh of Rs,5,00,000 (Rupees five lacs) stand invested in Scheme. The appellants have been convicted under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to death. They were also convicted under section 377, P.P.C. and were sentenced to imprisonment for life. Apart from that, conviction has also been recorded under section 7(ii), A.T.A. and they stand sentenced to death with a fine of Rs,1,00,000 each in default whereof both of them to further undergo seven years' R.I. Realizing that offences under these sections cannot be compounded and that the parties cannot grant pardon under these sections, appeals could not be allowed at least to the extent of conviction and sentence awarded under the aforesaid three sections i.e. under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under section 377. P.P.C. and under section 7(ii), A.T.A.
We therefore, called upon the learned counsel to appear and address arguments on this aspect of the case. The learned counsel, therefore, has appeared today (12-2-2002)-and advanced his arguments.
6. We have heard the arguments from the learned counsel for the appellants as well as for the State. It is argued that conviction is based only on the basis of extra-judicial confession which according to the learned counsel is always treated as weak `type" of evidence. According to the learned chisel, necessary corroboration to the extra-judicial confession is not available. He therefore, argues with vehemence that there is no reason that accused persons would have made, extra-judicial confession before the witnesses from whom they could not derive any benefit. In the alternative he has argued that even if it is considered that conviction under these sections is sustainable, the fact remains that compromise has been effected, legal heirs and the complainant have granted pardon and they have prayed for acceptance of the appeals and for acquittal In support of his contention, the learned counsel has cited various judgments, which include: (1997 PCr.LJ 1193) wherein the judgment, given by the Honourable Supreme Court has been relied upon, reported as (1997 SCM R 1411). The other judgments and citations are from various High Courts but in presence of the ruling by the Honourable Supreme Court (1997 SCM R 1411) "Ghulam Ali v. The State and another no other precedent is required. In this case the Honourable Supreme Court took a lenient view against the accused persons as a result of compromise in between the parties because they had forgiven the appellants and did not intend to pursue the appeal. In the present case as well. conviction recorded under section 12, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, under section 377, P.P.C. and under section 7 (ii) of A.T.A. and the offences thereunder have been compounded in the sense that convicts-appellants have been forgiven. The main offence of course was under section 302, P.P.C., wherein compromise has been effected and as observed above, we have accepted the compromise in order to promote, good relations in between the parties. We, therefore, are inclined to have a lenient view with regard to the sentences recorded under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under section 377, P.P.C. and under section 7 (ii) of A.T.A. In the former offence appellants have been sentenced to death, the same is set aside and instead the appellants are sentenced to undergo term of imprisonment which they have already undergone. Similarly, under section 377, P.P.C., the sentence of imprisonment for life is set aside and same is reduced to the term of imprisonment already undergone by them. As the appellants have paid substantial amount as Badl-e-Sulh D (Rs,5,00,000) we do not intend to impose any fine. While adopting a lenient view the main factor mainly weighed with us to accept the compromise is that offences were committed in a series of same transaction and we have accepted the compromise to ensure amiable relations and goodwill in between the parties and also to enhance peace and tranquillity in the locality. Adhering to the same reasons and principle we have reduced the sentence under the aforesaid two sections.
7. As regards section 7 (ii), A.T.A, we have perused that section with the help of the learned counsel and 'find that ingredients of this section are not applicable to the facts of the instant case.
Therefore, E conviction and sentence under section 7(ii), A.T.A being erroneous is not sustainable.
The same is as such set aside. Consequently the appellants are acquitted under this charge.
8. As a result of the above discussion, conviction and sentence of the appellants under section 302, P.P.C. is set aside on account of compromise and compounding of the offence. The appellants are, therefore, acquitted accordingly under that section. As held supra, appellants stand acquitted under section 7 (ii) of A.T.A as well.
9. The conviction under section 12, Offence of Zina (Hudood) Ordinance, 197 and section 377, P.P.C. is upheld, however, the sentence under both the above sections is reduced to the term of imprisonment already undergone by each of the appellant. We, therefore, order for the release of appellant from Jail, if not required in any other case.
10.All the above matters stand disposed of in the above terms. Murder Reference is disposed of in terms of the compromise.
Sentence of Death is not confirmed.