1993 P Cr (PLP)

3. Keeping in view these circumstances it was considered to examine order of the trial Court relating to the acquittal of the accused, because it was noticed that deceased Mst. Azeema had survived besides the heirs who are adult, by minor children as well. It was also revealed that compromise on behalf of the minor children has been executed by their guardian i.e. father and husband of deceased. On this a separate show-cause notice was ordered to be issued against the accused to explain as to why order of acquittal passed by trial Court on the basis of the compromise may not be recalled, because prima facie it appears to be defective.

4. It may be observed here that deceased Mst. Azeema wife of Allah Dad has been assassinated by her real brother, accused Abdul Aziz. The compromise has been arrived at between the following persons:-- (i) Allah Dad son of Nabi Bakhsh (husband of deceased Mst. Azeema). (ii) Abdul Rehman son of Abdullah (father of the deceased Mst. Azeema). (iii) Mst. Shah Gul wife of Abdul Rehman (mother of deceased Mst. Azeema). The compromise deed reflects that deceased had two minor sons namely Amir Bukhsh, Pir Bukhsh and a daughter Be Nazir. The perusal of compromise deed does not indicate that whether on behalf of above-named minors any one has entered into the compromise or not. According to Mr. Moula Bukhsh Makhdoom, Advocate of the accused, the compromise be treated even on behalf of the minors because their guardian i.e. Allah Dad had also signed the same. On the other hand Mrs. Ashraf Abbas, Advocate for the State disputed this legal position on the premises that admittedly compromise has been arrived at between the parties on the basis of Awf as has been contemplated under section 309 of Criminal Law (Second Amendment) Ordinance 1990, which does not confer a right on the minors as well as their guardian to waive the right of Qisas in Qatl-i-Amd . For the sake of convenience aforequoted section is reproduced hereinbelow:--

309. Waiver Afw of Oisas in Oat]-i-Amd

(1) In the case of Qatl-i-Amd an adult sane Wali may, at any time and without any compensation, waive his right of Qisas:-- Provided that, the right of Qisas shall not be waived. (a) where the Government is the Wali; or (b) where the right of Qisas vests in a minor or insane. (2) Where a victim has more than one Wali, one of them may waive his right of Qisas: Provided that, the Wali who does not waive the right of Qisas shall be entitled to his share of Diyat. (3) Where there are more than one victim, the waiver of the right of Qisas by the, Wali of one victim shall not affect the right of Qisas of the Wali of the other victim. (4) Where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas against the other offender.

5. On perusal of above provision of law it emerges that right of Qisas shall not be waived where the Government is Wali or where the right of Qisas vests in a minor or insane.

6. Contrary to above provision under section 310, the minor Wali has, been authorised to compound the right of Qisas through his guardian and conspicuously in the cases covered under section 309 such authority has not been extended to the guardian of the minor Wali. It may be seen that ordinarily the right to waive the Qisas is a personal right which can be exercised by the person who is, adult and sane having full capacity to differentiate between the good and the bad, therefore, on the basis of this analogy there is no hesitation in holding that a minor Wali cannot be compelled to waive the right of his Qisas through his guardian.

7. Mr. Moula Bukhsh Makhdoom placed reliance on Muhammad Mezher v. The State reported in 1992 P Cr. L J 443 wherein it has been held as under: -- Statements of Mst. of Irshad Bibi widow of the deceased Bashir Bibi, mother of the deceased. Ahmad Khan, father of the deceased, Shaukat Ali, his brother and Muhammad Azmat his first cousin who had lodged the F.I.R. have been recorded separately. All of them have stated that they have forgiven the accused in the name of Allah. According to them the deceased had left behind two minor sons and two minor daughters. Their mother and their grandparents have stated that they have forgiven the accused on their behalf as well, acting as natural guardians

8. With due deference and all humiliation I have my reservations to the view taken in above-reported case for the reasons that the statute has not conferred a right to forgive the accused by the minor. As it has already been observed hereinabove that the right of waiver is a personal right, therefore, the not be exercised by the guardian. The legislature in view of the same can also injunctions of Islam has rightly curtailed this right of the minors because it may give rise to so many complications at the time when the minor shall attains majority. For instance if on having grown-up he repudiates the action of his guardian and claims trial of the accused on merits or he alleges that the guardian in fact has received compensation by way of getting Diyat but to hoodwink his rights the compromise was styled as waiver. Thus to avoid such complications, in the larger interest of the minor this right has not been conferred upon him. It is observed that if the offence is compounded by way of Sullah , then in that case right of the minor would be fully protected because to the extent of his share Badl-a-Sullah shall be received by his guardian and on attaining the majority he would be empowered to recover the same from the persons who legally acted on his behalf while compounding the offence. Similarly in cases of Diyat the right of the minor shall also be fully protected.

8. In view of above discussion I am inclined to hold that trial Court was not justified in acquitting the accused on accepting the compromise which was not executed in accordance to the provisions of section 309 of the Ordinance.

9. Consequently acquittal order, dated 18th April, 1992, is set aside. Case is remanded to trial Court, who shall proceed against the accused, in accordance to law.

10. There is sufficient material against the accused for prima facie establishing a case of capital charge, therefore, the facility of the bail granted to him by the lower Court vide order, dated 31st March, 1992, is also hereb3 withdrawn, accused is present in Court. He be taken into custody forthwith. N.H.Q./430/Q Order accordingly