2017 PLP 90 (YLRN)

SHAHID HAMEED DAR, J.

This appeal arose from the judgment dated 26.3.2016, whereby learned Additional Sessions Judge, Tandlianwala (Faisalabad) convicted Fakhar Hayat (appellant) under sections 302(b) and 449, P.P.C. and sentenced him as under:- i) Under section 302(b), P.P.C.: to imprisonment for life with the direction to pay Rs.2,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default, to undergo simple imprisonment for six months. ii) Under section 449, P.P.C.: to rigorous imprisonment for ten years with fine of Rs.20,000/- or in default, to undergo simple imprisonment for two months. He was extended the benefit of section 382-B, Cr.P.C. with the observation that his sentences would run concurrently. It all happened on conclusion of his trial in a private complaint-case, filed by Ahmad Khan (complainant/P.W.4) for offences under sections 302, 449, 109 read with section 34, P.P.C., which was virtually an off-shoot of case FIR No.339/2009, dated 21.8.2009, registered for offences under sections 302, 109 read with section 34, P.P.C., at Police Station Saddar Tandlianwala (Faisalabad).

2. During pendency of this appeal, an application under section 345, Cr.P.C. read with section 338-E, P.P.C. and section 561-A, Cr.P.C. bearing Crl.Misc.No.2059-M/2016 was filed on behalf of the appellant, seeking for his acquittal on the basis of compromise between him and heirs of the deceased.

3. The requisite report dated 21.6.2016, submitted by the learned Sessions Judge, Faisalabad revealed that Mst. Rashida Bibi deceased was survived by a sister, Mst. Shahnaz Bibi and a minor daughter Malaika Bibi, aged about 15/16. The major legal heir, Mst. Shahnaz Bibi appeared before the learned Sessions Judge and contended that she had forgiven Fakhar Hayat (appellant) in the name of the Almighty and waived her right of Qisas and Diyat, without any coercion or pressure upon her. She maintained that she had no objection, if he was acquitted of the charge on the basis of compromise.

4. Insofar as the minor heir, Malaika Bibi (daughter) of the deceased is concerned, it transpired from the requisite report that her share of Diyat, Rs.8,40,500/- had been invested in the Defence Saving Certificates, as detailed therein, the originals whereof had been handed down to Mst. Shahnaz Bibi, real maternal aunt of the minor, by the learned Sessions Judge, Faisalabad with a direction to the Incharge National Saving Centre, Tandlianwala (Faisalabad) not to encash them till the minor attained majority or it was so ordered by any court of competent jurisdiction. The photostats thereof are available on the record.

5. Learned Deputy Prosecutor General Punjab has submitted that the parties have arrived at a valid compromise under section 302(b) P.P.C., so he has no objection to the acquittal of the appellant thereunder, but he would oppose this idea, as to his quest for seeking acquittal under section 449, P.P.C., being it a non-compoundable offence.

6. After hearing the learned counsel for the parties, it is observed that offence under section 302(b) P.P.C. is compoundable with the consent of the court. The major legal heir of the deceased, Mst. Shahnaz Bibi (sister) appeared before the learned Sessions Judge, Faisalabad and rendered a statement of voluntary nature, whereby she asserted to have wilfully and freely compounded the offence and forgiven the accused/appellant in the name of the Almighty Allah. She showed her desire that the accused, appellant might be acquitted of the charge in view of rapprochement grown. Insofar as interest of the minor heir, Mst. Malaika Bibi is concerned, suffice it to say, it has meticulously and sufficiently been safe-guarded through investment of her share in Diyat, Rs.8,40,500/- in a lucrative scheme, mentioned as above. Learned Sessions Judge, Chiniot has shown satisfaction as to the genuineness and voluntariness of compromise between the parties, hence, this court would also assent to it. Criminal Misc.No.2059-M/2016 stands allowed in mentioned sense.

7. In these circumstances, the conviction and sentence of the appellant under section 302(b), P.P.C. is set aside and he is acquitted of the charge accordingly.

8. So far as appellant's conviction under section 449 P.P.C. and award of sentence of ten years RI thereunder is concerned, it goes without saying that offence under section 449 P.P.C. is not compoundable. Nevertheless, the factum of compromise, as pressed by the parties herein, would most likely ensure peaceful co-existence between them in the days ahead, hence, it would better serve the ends of justice, if the appellant's sentence under section 449 P.P.C. is reduced as appreciably as entreatingly-submitted by his learned counsel. Reliance in this regard may be had on Naseer and others v. The State (1992 PCr.LJ 1196). Therefore, by maintaining his conviction under section 449, P.P.C., I reduce his sentence to one year R.I., but penalty of fine and the sentence of simple imprisonment in default thereof, would remain unchanged.

9. This appeal stands disposed of in the above terms. WA/F-20/L Order accordingly.