JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment dated 5-4- 2000 passed by learned Lahore High Court, Lahore, whereby criminal revision petition preferred on behalf of petitioner has been dismissed and the order dated 12-11-1999 passed by learned Additional Sessions Judge, Lahore, has been kept intact whereby application for permission to compound the offence was rejected being not maintainable in view of the law as laid down in Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307.
2. Precisely stated the facts of the case as enumerated in the impugned Judgment are to the effect that "one Tariq Mehmood Butt was murdered and criminal case (F.I.R. No,218, dated 24-10-1988) under section 302, P.P.C. Was registered at Police Station, Moan, Lahore against Muhammad Arshad alias Pappu. Muhammad Arshad was convicted for offence under section 302, P.P.C. And was sentenced to death. Sentence of death imposed on the convict was confirmed by order dated 30- 5-1993 by Lahore High Court, Lahore. Appeal filed by Muhammad Arshad was rejected by Supreme Court of Pakistan by judgments dated 7-10-1998. Black warrants in respect of Muhammad Arshad alias Pappu were issued and 30-10-1999 was fixed for execution of death sentence. On 8-10-1999 Mst. Shamshad Begum, mother of Muhammad Arshad and Mst. Bushra Bibi filed two applications for permission to compound the offence. Mst. Bushra Bibi had stated that she received an amount of Rs, two lacs from the accused as Diyat for herself and her minor children--Farooq Tariq and Amina Tariq. Rashid Butt, father of the deceased submitted an application that minor children of the deceased Farooq Tariq and Amina Tariq lived with him and Mst. Bushra could not compound the offence on their behalf and that no compromise could be 'effected by Mst. Bushra as the offence was committed and conviction recorded in respect of accused prior to amendment of Pakistan Penal Code, in the year 1990. The Additional Sessions Judge, Lahore relying upon dictum of their Lordships of Supreme Court in Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 concluded that applications for permission to compound the offence were not maintainable and rejected the same by order dated 12-11-1999." Being aggrieved the said order of learned Additional Sessions Judge was assailed before the High Court by means of criminal revision which was also dismissed vide judgment impugned, hence this petition.
3. Dr. A. Basit, learned Advocate Supreme Court appeared on behalf of petitioner and urged with vehemence that having once exercised the right of waiver of Qisas it cannot be nullified by any of the legal heirs and the compromise once executed cannot be rescinded after receiving the Diyat amount. It is next contended that the dictum as laid down by this Court in Aslam's case (supra) has been misconstrued and misinterpreted. It is argued that the wife of deceased had accepted an amount of Rs,2,00,000 as Diyat by exercising the right of waiver and therefore, the petitioner could not have been sentenced to death which aspect of the matter has been ignored by the learned Courts below without any lawful justification resulting in serious miscarriage of justice. It is urged that the dictum laid down in Aslam's case (supra) the sentence of death had been altered by the High Court to that of imprisonment for life and therefore, it was concluded by the Court that section 309(2), P.P.C. Cannot be invoked to seek the acquittal of the convict which aspect of the matter has not been kept in view while relying on the dictum in Aslam's case (supra). Dr. A. Basit, learned Advocate Supreme Court made it clear that he was also not seeking the acquittal of the petitioner but in view of the compromise executed between the parties irrespective of the fact that the mother and father were party to it or otherwise the sentence of death could not have been executed and in view of the prevalent circumstances the same is to be altered to that of life imprisonment. It is contended emphatically that on 23-9-1980, the learned Federal Shariat Court had declared section 302, P.P.C. (original form) as repugnant to the Injunctions of Islam and the Shariat Appeal assailing the said order was dismissed on 19-1-1988. In this regard reference has been made to Federation of Pakistan v. Gul Hussain Khan PLD 1989 SC 633. It is argued in view of the repugnancy of section 302, P.P.C. (original form) to Islam as held by the learned Federal Shariat Court that the date of occurrence would have no bearing on the merits of the case and waiver of Qisas could take place irrespective of the fact that Criminal Law Amendment Ordinance (VII of 1990) had become operational with effect from 12-10-1990. In order to substantiate his view-point he referred the expression "at any time" appearing in section 309(1), P.P.C.
4. Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court appeared on behalf of respondents and vehemently controverted the viewpoint as canvassed by Dr. A. Basit, learned Advocate Supreme Court for petitioner and supported the judgment impugned for the reasons enumerated therein. He has heavily relied upon the dictum as laid down in Aslam's case (supra) by submitting that such-like of controversies have already been set at naught and according to him only a futile attempt has been made to frustrate the order passed by this Court whereby the death sentence awarded to petitioner was confirmed by the Lahore High Court, Lahore vide judgment dated 30-5- 1993 and appeal preferred on behalf of respondents was also rejected by this Court on 7-10-1998. It is pointed out that no compromise whatsoever was got executed by Mst. Bushra Bibi on her behalf and that of minors who had refuted the execution of compromise before the High Court and stated in a category manner that she was addicted and compromise was got executed with, coercion and by show of force and more so the saving certificates were never handed over to her. Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court on behalf of respondents also pointed out that father and mother of the deceased had never entered into compromise as such no significance could be attached to the factum of compromise. It is pointed out that Criminal Law Amendment Ordinance (VII of 1990) was promulgated on 5-9-1990 and made operational with effect from 12- 10-1990 and therefore, no benefit whatsoever could be given to the petitioner and the compromise could only be effected pursuant to the provisions as contained in section 345, Cr.P.C. It is mentioned that petitioner was not sentenced to death by way of Qisas but it was awarded under Tazir and the petitioner could only get benefit subject to compromise with all the legal heirs.
5.. Ch. Muhammad Bashir, learned Additional Advocate-General appeared for State and supported the judgment impugned and also adopted the arguments made by Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court on behalf of respondents.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also minutely gone through the order passed by learned Additional Sessions Judge dated 12-11-1999 and judgment impugned.
The Criminal Law Amendment Ordinance (VII of 1990) was promulgated and enforced on 12-10- 1990 and prior to its promulgation admittedly the offence under section 302, P.P.C. Was not compoundable, which was subsequently made compoundable by virtue of an amendment made in section 345, Cr.P.C. The question as to whether any benefit can be extended to the offender qua the offence committed under section 302, P.P.C. Prior to 12-10-1990 and implication concerning partial compromise was examined by this Court in Aslam's case (supra), operative portion whereof runs as follows:-- "13. Having referred to the relevant provisions of the amended P.P.C. We may also observe that inter alia subsections (1) and (2) of section 345 of Cr.P.C., were amended as to make the offences mentioned therein compoundable without and with the permission of the Court. It may be pointed out that under subsection (1) of section 345 of Cr.P.C, it is provided that the offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table.
Whereas. Subsection (2) thereof lays down that the offences punishable under this section of the Pakistan Penal Code specified in the first two columns of the Table next following may with the permission of the Court before which any prosecution for such offences is pending be compounded by the persons mentioned in the third column. Whereas subsection (3) thereof provides that when any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in the like manner. It may further be mentioned that subsection (4) of the same lays down that where the person who would otherwise be competent to compound under this section is under the age of 18 years, or is an idiot or lunatic, any person, competent to contract on his behalf may with the permission of the Court compound such offence. Whereas subsection (5) thereof provides that when the accused has been convicted and an appeal is pending no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard.
Subsection (5-A), which was incorporated by the Law Reforms Ordinance, 1972, provides that a High Court acting in exercise of its powers of revision under section 439 and a Court of Session so acting under section 439-A may allow any person to compound any offence which he is competent to compound under this section. It may further be observed that subsection (6) thereof lays down that composition of an offence under this section shall have the effect of an acquittal of the accused (with whom the offence has been compounded). The latter portion was incorporated by Law Reforms Ordinance, 1972. It may also be stated that subsection (7) of the same provides that no offence shall be compounded except as provided under this section."
"15. Reverting to the basic question involved in the present case, namely, whether the benefit of subsection (2) of section 309, P.P.C. Can be extended to an accused person who has been awarded death sentence or imprisonment, for life as Tazir and not as Qisas, it may be stated that the above question seems to stand concluded by this Court inter alia in two of the above three cited cases. In the case of Safdar Ali and another (supra), this Court made the following observations on the above question:-- 'In this case, three petitioners, though convicted under section 302, P.P.C. Have been sentenced to life imprisonment. Section 310 provides from compounding of Qisas (Sulah) in Qatl-i-Amd and lays down that 'in the case of Qatl-i-Amd, an adult sane Wali may, at any time on accepting Badl-i- Sulah compound his right of Qisas'. Qisas is defined in clause (k) of section 299 as follows:--
(k) Qisas ((Lii) means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-i-Amd, in exercise of the right of the victim or a Wali.' (Underlining is ours). Accordingly, the right of Qisas means the right of causing death of the convict if he has committed Qatl-i-Amd. In this case, as the petitioners have not been sentenced to death, but to life imprisonment, the question of the heirs of the victim compounding their right of Qisas does not arise. The present case, therefore, falls under the provisions of subsection (2) of section 343, as amended by the Criminal Law (Amendment) Ordinance, 1991. According to section 10 of the said Ordinance clause (b) of section 345 of the Cr.P.C. Has been substituted as follows:--
(b) in subsection (2), in the table, in the second column, for the figures '302, 303, 304-A, 305, 306, 307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338' and the entries thereto in the first and third columns the following shall be substituted, namely:-- Qatl-i-Amd 302 By the heirs of the victim .... ........ .... ........ .... ........
Subsection (2), as amended, now reads as follows:--
(2) The offences punishable under the sections of Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the person mentioned in the third column of that table." Whereas in the case of Manzoor Hussain and others (supra) inter alia the following was concluded:-- "We have anxiously considered the arguments of the learned counsel for the parties and have minutely gone through the record of the case. Admittedly, Mst. Sakina is the wife of Muhammad Siddique deceased and being his Shari heir falls within the definition of 'Wali' and entitled to 'Mw' under section 309, P.P.C. And to compound the Qisas under section 310, P.P.C. According to her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the appellants in any way as all the appellants were tried, convicted and sentenced under Ta'zir and not Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be their sister cannot come to their rescue in anyway. The trial Court has, fairly dealt with this aspect of the case and we have reasons to differ with it."
"..In our view, this provision does not nullify the well-settled proposition of law that in case where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh. However, in view of the amendment in section 345(2), Cr.P.C.
The sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the deceased with the permission of the Court concerned." (Emphasis provided).
22. It may be observed that Mr.Asif Saeed Khan Khosa seems to be correct in contending that different superior Courts have approached the question of applicability of sections 309, 310 and 311, P.P.C. Differently but this fact does not, in any way, affect the view which we are inclined to take. If an accused person has been awarded death sentence as Qisas, the same can only be undone under section 309 or section 310, P.P.C. However, if the sentence is awarded by way of Ta'zir, the Court has the power to grant permission to the legal heirs of the deceased and the accused to compound the offence under subsection (2) of section 345, Cr.P.C. Which will result in acquittal' under subsection (6) thereof if the compromise is accepted by the Court.... ... As against this Sardar Asif Saeed Khan Khosa, learned Advocate Supreme Court,.Who had rendered valuable assistance to us, referred to the case-law since the enforcement of the Criminal Law (Second Amendment) Ordinance, 1990 till date on a number of aspects which the superior Courts of the country have been called upon to address. In this context he placed reliance on: (1)
Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan PLD 1989 SC 633, (2) Safdar Ali and others v. The State and another PLD 1991 SC 202, (3) Javaid Masih v.The State 1993 SCMR 1574, (4) Manzoor Hussain and 4 others v.The State 1994 SCMR 1327, (5) Ghulam Hussain and another v.The State (NLR 1993 Crl. 203, (6) Tariq Mehmood and another v.The State PLD 1992 Lahore 75, (7) Nazar Ali and another v.The State PLD 1992 Peshawar 176, (8) Muhammad Ishaq v.The State PLD 1992 Peshawar 187, (9) Usman and another v.The State 1992 PCr.LJ 1960, (10) Azmat Ullah Khan v.The State 1993 PCr.LJ 1220, (11) Muratab Ali v.The State 1994 PCr.LJ 1413 and (12) Nisar Ahmad and 2 others v.The State 1994 PCr.LJ 1587. My learned brother Ajmal Mian, J. In order to distinguish these precedents, has very ably deduced the ratio out of each one of them. Out of these cases, in the last mentioned case of Nisar Ahmid and 2 others v. The State (supra) the proposition in the case in hand had been dealt with briefly. The petitioner was not convicted for_ an offence of 'Qatl-i-Amd' liable to Qisas within the purview of section 302(a), P.P.C. He. Was of course convicted under section 302, P.P.C. As it held the field prior to its amendment under the Criminal Law (Second Amendment) Ordinance, 19901 In any case the High Court in exercise of its appellate jurisdiction has already reduced the sentence awarded to the petitioner to life imprisonment. Again, notwithstanding the fact that the occurrence in this case had taken place on 29-6-1990 while the Criminal Law (Second Amendment) Ordinance, 1990, was promulgated on 5-9-1990, (actually it came into effect on 12th of Rabi-ul-Awal, 1411 Hijri falling on 3-10-1990), its provisions could be invoked under section 338-E which reads as under:-- "338-E. Waiver or compounding of offence.--Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898, all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences." (Underlining is ours).
"338-H. Saving.--(1) Nothing in this Chapter, except sections 309, 310 and 338-E, shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990) or to the offences committed before such commencement." In this view of the matter, the ratio deducible from the case of Safdar Ali (supra) is that waiver or the compounding of an offence in cases falling under section 309 (Waiver-Afw) of Qisas in Qatl-i- Amd) and section 310 (Compounding of Qisas-Sulah in qatl-i-Amd) is possible even in those cases of Qatl-i-Amd where the right of Qisas cannot be enforced because the sentence of death has not been imposed and the lesser sentence of imprisonment for life under section 302, P.P.C. Had been awarded in view of the provisions of section 345, Cr.P.C. As amended. From this stage onwards the precedent of Safdar Ali (supra) is distinguishable inasmuch as in that 'case not only that all the heirs of the deceased desired to compound the offence but a sum of Rs,1,71,000 was also paid to the heirs of the victim as Badl-i-Sulh. In the instant case, as it has been noted earlier, while the widow of the victim in person and as guardian of her minor children who are also his 'Walis' have compounded the offence with the petitioner whereas the mother of the victim has declined to do. Again under Criminal Law (Third Amendment) Ordinance (VII of 1990) which came into force on 12th Rabi-ul-Awal, 1411 Hijri, falling on 3-10-1990 under column (3) of subsection (2) of section 345, Cr.P.C. Reproduced ante, inter alia, the offence punishable under section 302 of the P.P.C. With the permission of the Court before which any prosecution is pending or in view of subsection (5) of section 345, Cr.P.C. With leave of the (sic) 'by the heirs of the victim'. The crucial words are 'by the heirs of the victim'. By employing this phraseology the intendment of the Legislature clearly appears to be that the composition of the offence aforesaid was made permissible if all the heirs of the victim nail consented. If the Legislature's intendment had been to flow compounding of the offences by anyone or more of the heirs of the victim there was nothing to prevent it to have used a different wording appropriate to express its intention. It would, therefore, approve the construction put on the amended section 345, Cr.P.C. By a learned Judge of a Division Bench of Lahore High Court in case of Nisar Ahmad and 2 others (supra) 1994 PCr.LJ 1587 wherein it was held: It is true that only some of theaters of Rehmat deceased have compounded the murder in question with the three appellants. Therefore, the acquittal cannot be claimed for Nisar appellant who stands convicted under section 302, P.P.C. And punished with death. The newly-substituted provisions of section 311, P.P.C. As amended by Ordinance (XII of 1993) envisage punishment of the offender by way of Ta'zir to a maximum term of 14 years' imprisonment if only some of the Walls of the deceased waive or compound the right of Qisas." In this case as noticed earlier the occurrence had taken place on 29-6-1990 before the enforcement of Criminal Law (Second Amendment) Ordinance. He could only be and had been convicted under section 302, P.P.C. As it held the field before the aforementioned amendments.
Accordingly he was sentenced to death Apart from payment of fine etc. On appeal, however, the High Court while maintaining his conviction, had commuted his death sentence, and awarded him imprisonment for life but did not interfere with the sentence of fine etc. Neither trial Court nor the High Court or for that matter even this Court could have resorted in this case to the provisions of the Criminal Law (Second Amendment) Ordinance, 1990 except amended sections 309 and 310 of the Penal Code. Resultantly, award of punishment by way of Ta'zir could not and had not been awarded in this case, the first proposition noted in para. 1 ante need not be answered one way or the other. Be that as it may and notwithstanding the fact that newly-added section 345, Cr.P.C. Is a procedural in effect, therefore, ordinarily it would have been applicable retrospectively.
Nonetheless it has been made applicable under the Criminal Law (Third Amendment) Ordinance, 1990, with effect from 3-10-1990. By force of the newly-inserted sections 338-E and 338-H of the Penal Code it is, therefore, doubtful if compounding of offence of 'murder' under section 345, Cr.P.C.
As it stood prior to the amendment would legally be permissible. In any case as all the heirs of the victim excepting his mother in the case in hand have compromised with the victim, therefore, the case against the petitioner under section 302, P.P.C. Can neither be compounded nor provisions of section 309(2), P.P.C. Could possibly be pressed into service. I am, therefore, in respectful agreement with the conclusion arrived at by my learned brother Ajmal Mian, J.
(Sd.)
Muhammad Bashir Khan Jehangiri, J.
Compromise application rejected."
7. A bare perusal of the dictum as laid down in Muhammad Aslam's case (supra) would reveal that the following points were determined in a categoric manner and that the dictum laid down in Aslam's case (supra) still holds the field:--
(a) The condemned prisoners were categorized.
(b) The death sentence awarded prior to 12-10-1990 would be considered as a sentence by way of Tazir and not Qisas in any manner whatsoever.
(c) That in such eventualities the provisions as contained in section 345, Cr.P.C. Could be pressed into service.
(d) In partial compromise no benefit could be given due to the amendment made subsequently and enforced on 12-10-1990.
(e) The compromise in murder cases where death sentence was awarded by way of Ta'zir could be effected by all the legal heirs as contemplated under section 345, Cr.P.C. Meaning thereby that in such-like cases benefit could only be extended if compromise was executed by all the legal heirs and in absence whereof the question of any benefit under section 345, Ct.P.C. Does not arise.
(f) The position would, however, be different if conviction was awarded after 12-10-1990.
8. The case of petitioner has been examined on the touchstone of the criterion as laid down in Aslam's case (supra) and we are of the considered opinion that no benefit could be extended of the law which was enforced on 12-10-1990 and admittedly the petitioner was sentenced to death in an occurrence which had taken place prior to 12-10-1990. The parents of the deceased had not executed any compromise and therefore, the offence could not be compromised under section 345(2), Cr.P.C. Which makes it clear that compromise should be executed by all the legal heirs.
9. We have also adverted to the question of compromise allegedly executed by Mst. Bushra Bibi (wife of deceased) and its subsequent revilement and implication. The first important question at this juncture would be as to whether any compromise was executed? The answer would be in negative for the simple reason that Mst. Bushra Bibi had appeared before the High Court and denied that the compromise was ever executed or some amount received in lieu thereof. Can a compromise be thrusted upon a helpless lady by employing coercive tactics such-like abduction?
The answer would be in negative. A compromise can only be executed with free will of the party which has not been done in this case. In fact a desperate and futile attempt has been made to frustrate the judgment dated 7-10-1998 passed by this Court whereby appeal preferred against the death sentence was dismissed and even black warrants were issued on 30-10-1999 for execution of the death sentence and thereafter by exploiting the legal position the judgment dated 7-10-1998 of this Court could not be implemented. Even for the sake of arguments if it is admitted that Mst.
Bushra Bibi had executed a compromise the question would be how she could accept Badl-e- Sulah when sentence was admittedly awarded by way of Tazir and not Qisas. The dictum as laid down in Aslam's case (supra) cannot be kept aside merely on the ground that in that case conviction of death was altered to that of ten years by the High Court because it is not the question of sentence but the principle laid down concerning interpretation of various provisions of law which would be applicable in all such-like cases. It may not be ignored that in this case the petitioner was not convicted for offence of Qatl-i-Amd liable to Qisas but conviction and sentence was awarded under section 302, P.P.C. And offence could only be compounded under section 345(2), Cr.P.C. In such view of the matter even if compromise was executed it would have little significance and thus it would be nothing more but a futile academic exercise to consider the impact of resilement and advert to the question as formulated by this Court i,e, as to whether one of the Wali of deceased on her behalf as well as on behalf of minor children after accepting Badl-e-Sulah can resile from it subsequently. We are in agreement with D . Riazul Hassan Gilani, learned Senior Advocate Supreme Court who appeared as amicus curiae and referred various books including Holy Qur'an and also quoted instances from Hadees that once a compromise is made and Diyat received the legal heirs could not subsequently resile but the view of Dr. Riazul Hassan Gilani, learned amicus curiae cannot be made applicable in this case for the reason that no compromise voluntarily was executed by Mst. Bushra Bibi and further she was not competent to make such compromise as the petitioner was not convicted for Qatl-i-Amd by way of Qisas and accordingly the question of waiver does not arise. As mentioned hereinabove the petitioner was convicted and sentenced to death under section 302, P.P.C. By way of Tazir and compromise could only be effected by all the legal heirs of the respondents. The father and mother had approached all the forums from the Court of learned Additional Sessions Judge to this Court and submitted that no compromise whatsoever was executed by them. There is no justification whatsoever to discard the submission of Mst. Bushra Bibi made before the High Court that no such compromise was executed. No compromise can be termed as a valid compromise unless and until it is executed between. The parties at their own, voluntarily with free consent and without any fear, influence, coercion and deception. The compromise under influence should be rejected. In this regard we are supported by the dictum laid down in Abdul Ghafoor v. State 1992 SCMR 1218 wherein this Court observed as under:-- "... (3) Lastly in the Court only that compromise will be accepted and acted upon regarding which there is no doubt or dispute left anymore. If it is a matter of contrivances through which a party has to be subjected to compromise, it will be no compromise at all. A note of caution and warning is for the parties concerned that any doubt with regard to the free will of the parties in entering into a compromise in cases like the present one shall have to be resolved against the acceptance of the compromise; because, it is not a question of the punishment of an accused as a result of the compromise that benefit of a doubt may be given to the accused. On the contrary it is an accused/convict who seeks the favour of the other party. And if he is unable to satisfy the other party on all questions relating to compromise (which becomes a contract) that it is free from blemish and doubt, it cannot be accepted. Similarly, if the Court has any doubt whatsoever that the compromise is tainted with pressure, coercion, undue influence, blackmail, extortion or similar other infirmities, it shall have to be rejected without much of arguments or discussion. Because only that compromise would qualify for acceptance which is above every blemish, mild or strong. In the present case even the Court Associate and Research Associate have pointed out certain defects discovered by them in the purported compromise submitted in the form of application and the pro forma. The objections are appended herewith as a schedule to this judgment. Even if some and not all are valid, there would be no scope at all for acceptance of the compromise. Accordingly, the plea for acceptance of the compromise after a short summary preliminary hearing by the Supreme Court on this question was rejected and then the counsel argued the case on merits." The said view also finds support from Ghulam Sajjad v. The State 1997 SCMR 1526.
10. As mentioned hereinabove Mst. Bushra Bibi had appeared in High Court and denied in a categoric manner that compromise was executed freely and it was observed by the High Court as under:-- ... .... Learned counsel for Abdur Rashid also submitted thatMst. Bushra never received any sum of money and stand of the convict in this regard was also baseless. Mst. Bushra present in Court supports this plea as well." (Emphasis provided).
11. An application in this regard was also submitted by Mst. Bushra Bibi in High Court duly supported with an affidavit, relevant portion whereof is reproduced hereinbelow for ready reference:-- "3. That the applicant neither herself nor on behalf of minor children compromised with free consent nor is prepared to compromise. It is, therefore, respectfully prayed that this Hon'ble Court may graciously -bring on record the affidavit of the applicant and may kindly take notice that the applicant is not party to the compromise proceedings, neither has compromised or will compromise by herself or on behalf of her minor children with the accused Muhammad Arshad alias Pappu (accused for the murder of her husband Tariq Mahmood Butt.) It is further prayed that any other appropriate order this .Hon'ble Court may deem fit may also be passed.
(Sd.)
Bushra Butt, applicant."
"Affidavit of Bushra Bibi widow of Tariq Mahmood Butt.
1. That the deponent Bushra Bibi widow of Tariq Mahmood Butt never entered into a compromise with the accused Muhammad Arshad alias Pappu. It was under coercion that the signatures of the deponent were got on different papers by the relatives and persons pursuing for Muhammad Arshad alias Pappu and under coercion, threat to her life, she was made to even go for certain proceedings in the matter. There was serious danger to the applicant's life and to the lives of the minor children of the deponent.
2. That the deponent never received Rs,2 lacs as is being alleged. As regards, Defence Saving Certificates mentioned by the accused to the tune of Rs,1,50,000, of 50,000 each, they have never been delivered to the deponent.
3. That the deponent neither herself nor on behalf of minor children compromised with free consent nor is prepared to compromise.
(Sd.)
Bushra Butt, deponent."
12. The observation of High Court as mentioned herein above regarding ,the factum of compromise is not open to any exception. Besides that Mst. Bushra Bibi has reiterated her plea that no compromise was executed before this Court as is indicative from order dated 24-5-2002 which is as follows:-- "Mst. Hamida Begum, mother of deceased, Mst. Bushra Tariq, widow of deceased, Amina Tariq and Farooq Tariq, daughter andson of deceased appeared alongwith Mr. Munir Ahmad Bhatti, Advocate Supreme Court and stated that they have not compromised the matter with the accused. Learned counsel for petitioner has also made an application for adjournment."
13. On the basis of what has been stated above it can be concluded safely that no compromise will be accepted authenticity and genuineness whereof is above board and not disputed from any angle. The satisfaction of the Court regarding execution of compromise cannot be ignored. We are satisfied on the basis of record that the compromise, if any, was executed by use of coercion and force and thus being controversial and disputed it cannot be taken into consideration. In the light of what has been discussed hereinabove we are not inclined to accept this petition being meritless, which is rejected.