2014 PLP 1155 (SCMR)

DOST MUHAMMAD KHAN, J.

Impugned herein is the judgment of the learned Division Bench of the Lahore High Court, Rawalpindi Bench dated 20-1-2011.

2. Leave to appeal was granted through the detailed and well reasoned order dated 20-9-2012 and also the delay in filing the petition/appeal was condoned, with the object to secure the ends of justice through reappraisal of evidence.

3. This unfortunate tragedy took place on 24-7-2009 almost at midnight. The deceased Mst. Madhia along with her aunt/complainant Riffat Zahra and first cousin Naureen Abbas were travelling in a car, driven by one Azhar Hussain. When they reached "Dheri" a white car carrying 4/5 persons rammed into the car of the deceased and brought it to halt. Two of the unknown culprits, duly armed with revolver and rifle respectively, got down. The complainant side tried to escape from the scene, however, they were fired upon, as a result whereof, Madhia Abbas was hit on her right flank and shoulder. She was rushed to DHQ Hospital but there she succumbed to the injuries.

4. The crime report was registered vide F.I.R. No.145/09 with Police Station Jalal Sharif, District Jhelum at 01 a.m., where none was charged, as the complainant family was having no enmity in the area. Acting on presumption, the police registered the case under sections 302/396, P.P.C., on the bases of self-assumed inference that probably, it was a case of unsuccessful attempt of committing robbery/dacoity.

5. After the arrest of the accused, one Kalashnikov was recovered while other articles having blood stains were taken into possession. On conclusion of the investigation, charge sheet was filed in the trial Court.

6. During the pendency of appeal, compromise was effected between the parties, which was duly verified to be genuine by the learned District and Sessions Judge concerned. However, the learned High Court held that this case is of the nature, which falls within the definition of and because the accused had acted in a brutal manner, the crime they have committed was outrageous to public conscious, therefore, compounding the right of Qisas by the "Walis" would not completely exonerate the appellants nor they could go out without any punishment.

7. We have heard the arguments of the learned Advocate Supreme Court for the appellants, learned Advocate Supreme Court for respondent No.2 as well as the learned Additional Prosecutor-General, Punjab and have gone through the record and evidence furnished at the trial.

8. Notwithstanding the merits of the case, being a midnight occurrence and because no one from the complainant party was deprived of any cash amount or any other property. Similarly, no attempt was made by any of the culprits to suggest that any attempt indeed was made to commit highway robbery, an offence under section 396, P.P.C., thus, is not constituted/established. After having held the above view, now the question arises as to whether the learned High Court was justified in law in convicting and sentencing the accused under section 311, P.P.C., after genuine compromise was effected between the parties and whether any mischief or element of is borne out from the facts and circumstances of the case.

9. The learned High Court conveniently ignored the law laid down by this Court in the case of Khan Muhammad v. The State (2005 SCMR 599) that section 311, P.P.C. will be attracted in cases punishable with "Qisas" and not to cases punishable under "Ta'zir".

10. After the accused entered into a genuine compromise with the complainant party/legal heirs of the deceased and when no clear evidence was available to constitute the offence involving the element/mischief of , then, the learned High Court was not justified in law to convert punishment of the appellants to one under section 311, P.P.C. instead of acquitting them on the basis of compromise.

11. In view of the facts and circumstances, the evidence furnished at the trial, once a genuine compromise was effected between the parties and the legal heirs of the deceased were compensated and when no clear case of an offence constituting was made out, then on acceptance of the compromise, the appellants were entitled to acquittal, on that ground alone. We have considered with a degree of care and caution, the case from all legal and factual aspects and we see no reason, much less plausible, to maintain the conviction of the appellants, as genuine compromise was effected between the parties because offence under section 302, P.P.C. has been made compoundable in view of the provisions of section 345, Cr.P.C. Thus, in our view, the learned High Court has committed a legal error in convicting and sentencing the appellants for crime under section 311, P.P.C., which, in our view, has caused serious miscarriage of justice.

12. Accordingly, for what has been discussed and held above, this appeal is allowed and on the basis of compromise, the appellants are acquitted of all the charges levelled against them. They be set free forthwith, if not required in any other case. MWA/I-11/SC Appeal allowed.