ABDUL HAMEED DOGAR, J.-Petitioners named above by means of instant petition have assailed the judgment, dated 12th September, 2001 passed by Lahore High Court, Rawalpindi Bench.
2. Precisely stating the facts, necessary for disposal of instant case are that petitioners were tried alongwith, co-accused for the charge under sections 302/324/148/149 and 109, P.P.C. By the Special Court constituted under Anti-Terrorism Act, 1997, in pursuance of F.I.R. No,216, dated 19th December, 1998 registered at Police Station Jand, District Attock. Learned trial Court on conclusion of the trial found the petitioners guilty of the charge and vide judgment, dated 23rd September, 2000 sentenced them as under:--
1. Under section 148, P.P.C. Sentenced all the petitioners to 3 YearsR.I. Each.
2. Under section 7(a) of ATA, 1997 Sentenced petitioners-Maulana Nawabul Hassan and Shohabuddin to death.
Whereas rest of the petitioners were sentenced to life imprisonment.
3. Under section 302(b), P.P.C. Sentenced petitioners-Maulana Nawabul Hassan and Shohabuddin to death with direction to pay Rs,3 Lacs as compensation to the legal heirs of deceased or in default to undergo S.-I. For six months, each.
4. Under Section 302 (b)/149,P.P.C.Sentenced all the petitioners to life imprisonment on two counts, each.
5. Under Section 324 P.P.C. Sentenced petitioners-Haji Fateh Muhammad , Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan, to 10 yearsR.I.
Each with direction to pay fine Rs,5,000 each, which shall be paid to injured, or in default whereof to undergo 3 monthsS.I., each.
6. Under sections 324/149, P.P.C. Sentenced petitioners-Maulana Nawabul Hassan, Shohabuddin, and Ghulam Raza, to 3 yearsR.I. Each on three counts. Whereas petitioners-Haji Fateh Muhammad, Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan to 3 yearsR.I. Each on two counts.
Benefit of section 382-B, Cr.P.C.
Was also given to the petitioners and all the sentences of imprisonment were ordered to run concurrently.
3. Feeling aggrieved from the judgment of the trial Court, petitioners-accused approached Lahore High Court, Rawalpindi Bench, Rawalpindi by filing Criminal Appeal No,385-T/2000. Learned High Court, after hearing both the sides, by means of impugned judgment dated 25th September, 2001, maintained the conviction but modified the sentence as under:---
1. Under section 7(a) of ATA, 1997 All the petitioners were acquitted of the charge.
Under section 324, P.P.C. Reduced the sentences of petitioners-Haji Fateh Muhammad, Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan, from 10 yearsR.I. Each to 7 yearsR.I.
Rest of the conviction/sentence was however maintained.
As such instant petition for leave to appeal has been filed.
4. It is also important to note that prior to above said F.I.R. No,216 dated 19th December 1998, another F.I.R. No,174, dated 13th August, 1993 with the same Police Station was registered under sections 302/324/337-A(ii)/148 and 149 P.P.C, on the complaint of present petitioners-accused.
5. Dr. Babar Awan ASC, appearing on behalf of petitioners filed a Criminal Miscellaneous Application No,124 of 2002, wherein he stated that rival parties have compounded the offence and have forgiven each other in the name of Almighty Allah. He further stated that compromise has been effected, therefore, same may be accepted and petitioners be acquitted of the charge.
6. In order to verify the contents of the compromise, Sessions Judge, Attock was directed to conduct an inquiry. He submitted his first report dated 12th June, 2002 wherein he stated that legal heirs of deceased Ghulam Haider namely Mst. Ghulam Fatima (widow), Arif Hussain, Safdar Hussain (sons), Mst. Sughra Bibi, Mst. Asia Bibi (daughters), legal heirs of deceased Ahmed Khan namely Mst. Sarwar Jan (widow Ghulam Abbas, Mukhtiar Hussain, Muhammad Tufail, Zawar Hussain, Muhammad Akram (sons), Mst. Bagh Bhari, Mst. Kalsoom, Mst. Gulnaz (minor)
(daughters), and legal heirs of deceased Mumtaz Hussain namely Muhammad Nawaz (father), Mst. Amir Bano (mother), Mst. Aasia Khatoon (widow) Muhammad Mukhtar, Israr Haider (minor)
(sons), Mst. Sidra Batool, Mst. Sumera Batool (minor), Mst. Sabika Batool (minor), Mst. Farwa Batool (minor), Mst. Asma Batool (daughters) have forgiven the accused in the name of Almighty Allah and had expressed no objection on their acquittal. Learned Sessions Judge recorded statements of all the injured as well as the major legal heirs of the deceased in this respect. However, Mst. Sehra Batool daughter of Mumtaz Hussain deceased and Mst. Gohran Bano daughter of Ghulam Haider deceased have not been produced because they are married and residing abroad with their husbands and it was not possible for them to return Pakistan. However, they have filed their respective affidavits duly notarized in the country where they are residing. Since it was a partial compromise, as statements of above mentioned legal heirs were not recorded and `Diyatamount to the extent of minor legal heirs was also not deposited, as such vide order dated 15th October, 2002 of this Court, learned Sessions Judge was directed to consider the evidentiary value of affidavits, submitted by the above said legal heirs, in accordance with law. He was also directed to determine the amount of `Diyatof the minors and ensure its deposit in the name of minors in any Government sponsored profit bearing scheme. In consequence whereof learned Sessions Judge submitted another report dated 14th November, 2002, wherein he submitted that affidavit sworn by Mst. Sohera Batool daughter of deceased Mumtaz Hussain is duly certified by Counselor, Embassy of Pakistan, Tehran, whereas affidavit sworn by Mst. Gohran Bano daughter of deceased Ghulam Haider has been certified by Solicitor Iqbal Khan & Co. Of Peterborough PE-1, 2nd Lincoln Road, and duly attested by Qazi Habib-ur-Rehman, Counselor, High Commission of Pakistan, London. He further submitted in his report that these documents have been proceeded in a proper manner and due course of law and are relied under section 95 of Evidence Act to be genuine. He also submitted in his report that respective shares of Diyat of the minors have been invested in Government sponsored profit bearing scheme of DSCs with National Saving Centre-1, Attock, with the direction that amount so deposited and profit accrued thereon be paid to the minors when they become major. Learned Sessions Judge found the compromise to be genuine, verified by all the legal heirs and injured and certified the same to be correct and valid, as all of the legal heirs and injured had forgiven the petitioners in name of Almighty Allah and have waived their right of Qisas.
7. Learned counsel appearing on behalf of parties stated that all the legal heirs as well as injured have forgiven the petitioners in the name of Almighty Allah and waived their right of Qisas and Diyat, therefore, petitioners may be acquitted of the charge.
8. In view of above discussion, we are satisfied with the report of learned Sessions Judge, Attock.
We are also convinced that the legal heirs and Wali of deceased Ghulam Haider namely Mst.
Ghulam Fatima (widow), Arif Hussain, Safdar Hussain (sons), Mst. Sughra Bibi, Mst. Asia Bibi and Mst. Gahran Bano (daughters), legal heirs of deceased Ahmed Khan namely Mst. Sarwar Jan (widow), Ghulam Abbas, Mukhtiar Hussain, Muhammad Tufail, Zawar Hussain, Muhammad Akram (sons), Mst. Bagh Bhari, Mst. Kalsoom (daughters), and legal heirs of deceased Mumtaz Hussain namely Muhammad Nawaz (father), Mst. Amir Bano (mother), Mst. Aasia Khatoon (widow), Muhammad Mukhtar (son), Mst. Sidra Batool, Mst. Asma Batool and Sehra Batool (daughters) have compounded the offence with the petitioners on their behalf as well as on behalf of minors namely Mst. Gulnaz (minor daughter) and Israr Haider (minor son), voluntarily, without any duress or coercion and have waived their right of Qisas and do not claim Diyat, in the name of Almighty Allah. So far as minors are concerned, they are entitled to the share of Diyat, as such their respective shares have been invested in Government sponsored profit bearing scheme of DSCs with National Saving Centre-1, Attock, which will be paid to them when they will become major.
9. It is pertinent to refer the provisions laid down under sections 309, 338-E and 338-H whereby in the case of Qatl-i-Amd an adult sane Wali may, at any time and without any compensation may waive the right of Qisas without accepting any compensation. Correspondingly, an amendment was made under section 345, Cr.P.C. Whereby convicts who have been convicted for offences falling within Chapter XVI of P.P.C. Affecting the human body were made compoundable and got the right to seek composition of for the offences. Vide its subsection (5), the legal heirs of the deceased and victims have been allowed to compound the offence with the permission of the Court where appeal is pending whereas vide its subsection (6), such composition of an offence shall have an affect of an acquittal of the accused with whom the offence has been compounded.
10. Therefore, in view of the report of Sessions Judge, Attock and request so made by learned counsel for the parties, legal heirs and injured/victims are allowed to compound the offence with the petitioners.
Accordingly, the permission to compound the offence in view of subsection (5) of section 345 of the Cr.P.C. Is accorded to the parties in order to maintain cordial relations and burry their hatchets forever. Resultantly, Criminal Miscellaneous Application No,124 of 2002 is allowed.
Since leave to compound the office has been allowed, as such we set aside the conviction/sentence of the petitioners as well as impugned judgment dated 25th September, 2001.
The petitioners namely Maulana Nawab-ul-Hassan son of Shah Nawaz, Haji Fateh Muhammad son of Muzaffar Khan, Shuhab-ud-Din son of Ghulam Raza, Ghulam Raza son of Ghulam Muhammad, Muhammad Aslam son of Ghul Khan, Muhammad Iqbal son of Ghulam Muhammad, Muhammad Riaz son of Muhammad Hussain, Muhammad Khan son of Afzal Khan are acquitted under subsection (6) of section 345, Cr.P.C. They are directed to be released forthwith, if not required in any other case.
Consequently, petition is converted into appeal and disposed of in above terms.