IJAZ AHMAD CHAUDHARY, J.---Through this petition under sections 435/439, Cr.P.C. The petitioner seeks setting aside of the order dated 26-5-2003 passed by the learned Sessions Judge, Muzaffargarh by which the application filed by one Khyal Marjan brother of Annar Jan deceased for effecting compromise between the legal heirs and Allah Bakhsh convict has been turned down.
2. The brief facts of the case are that Annar Jan deceased was murdered and case F.I.R. No.53 was registered on 11-7-1991 under sections 302/392, 412/34, P.P.C. At Police Station Sinawan District Muzaffargarh. After the trial petitioner Allah Bakhsh was convicted alongwith other accused under section 302, P.P.C. And sentenced to death, besides conviction under sections 392/ 397/34, P.P.C.
Recorded by the learned Special Court constituted under the Suppression of Terrorist Activities Act, 1975 vide judgment dated 27-11-1991. Against the said judgment Criminal Appeal No.398 of 1991 was filed which was dismissed by this Court on 25-1-2000, whereagainst Jail Petition No. 170 of 2000 was also dismissed by the Supreme Court of Pakistan on 6-9-2001. Black warrants were issued for 2-10- 2002 when an application was moved by one Khiyal Marjan brother of Annar Jan deceased for accepting compromise between the legal heirs of the deceased and the petitioner-convict before the learned Sessions Judge on 1-10-2002 and execution of the death sentence was suspended. The statements of Khayal Marjan son of Khaista Jan real brother of the deceased and Mst. Salina alleged widow of deceased were also recorded who stated that the deceased Annar Jan was survived by Mst. Salama Bibi widow, Rehman's Gul minor son and Iqbal Bibi minor daughter but the Learned Sessions Judge has dismissed the application vide the impugned order on different grounds.
3. Learned counsel for the petitioner contends that according to the list of legal heirs of Annar Jan deceased available on the judicial record Mst. Salina Bibi was widow of the deceased besides one son namely Rehman's Gul and one daughter Islam Bibi. He further contends that this document has not been considered by the learned Sessions Judge which was prepared way back in the year 1991 by the police at the time of submission of the challan. It is further contended that the compromise was effected genuinely and the legal heirs also appeared in support of the same, but in spite of that the learned Sessions Judge has dismissed the application on surmises and conjectures. Relies upon judgments reported as Nazak Hussain v. The State PLD 1996 SC 178 and Baz Muhammad v. The State 2000 PCr.LJ page 553 in support of his contentions that the compromise can be accepted even at this stage.
4. On the other hand learned A.A.-G. Opposes this petition on the ground that the compromise has rightly been rejected by the learned Sessions Judge. Relies upon judgment reported as Sh.
Muhammad Aslam and another v. Shaukat Ali alias Shaukat and others 1997 SCMR page 1307. It is further contended that section 338(e), P.P.C. Is applicable only in cases in which the conviction has been passed in Qisas while sections 309/310, P.P.C. Also deal with the punishment awarded as Qisas and offence cannot be compounded if the sentence has been recorded.
5. We have heard the learned counsel for the parties and gone through the law cited by both the parties and also the relevant provisions of law. Prima facie an impression is gathered after the perusal of section 338(e), P.P.C. That it only applies in the cases where the conviction has been passed as Qisas. Similarly sections 309/310, P.P.C. Also deals with the cases of Qisas. Moreover, provisions of section 345, Cr.P.C. Are also applicable when the cases are pending trial before the learned trial Court but there is no such provision in the aforesaid sections of Cr.P.C. To cover the cases where the death sentence has been upheld as Tazeer up to the level of the Supreme Court of Pakistan, if the offence is compounded by the legal heirs of the deceased. But even then keeping in view proviso to section 381, Cr.P.C. Which is reproduced as under:-- "Provided that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him even at the last moment before execution of the sentence."
The offence can be compounded even if the death sentence is upheld up to the level of Supreme Court at the last moment of its execution.
6. We are not satisfied that the impugned order has been passed by the learned Sessions Judge after application of full mind as the list of legal heirs referred to by the learned counsel for the petitioner available at page 129 of the judicial file, according to which the deceased was survived by his one son and daughter besides his widow Mst. Salma Bibi, has not been considered. Even otherwise efforts should be made to ascertain genuineness of the legal heirs of the deceased through political agent and any other source as the matter pertains to life and liberty of the petitioner who is condemned prisoner awaiting for execution of death sentence.
7. For the foregoing reasons this revision petition is accepted, impugned order dated 26-5-2003 passed by the learned Sessions Judge, Muzaffargarh, is set aside and the matter regarding effecting of compromise between the legal heirs of Annar Jan deceased and the petitioner is remanded to him for decision afresh within thirty days. He will look into list of legal heirs appended with the judicial record at page 129 which was prepared at the time of submission of the challan and can take all necessary steps to ascertain its correctness and arrive at a conclusion that the compromise has been effected by the legal heirs voluntarily. The petitioner will be afforded fair opportunity of hearing. It is, however, clarified that the interest of minor legal heirs shall be secured as provided by law. The execution of death sentence will remain suspended till the decision by the learned Sessions Judge, Muzaffargarh.