1998 PLP 1921 (SCMR)

AJMAL MIAN, C.J.

This is an appeal with the leave of this Court against the judgment dated 24-11-1993 passed by a learned Single Judge of the Peshawar High Court in Civil Revision No.51 of 1990 filed by the respondents against the concurrent judgments/decrees of the learned Civil Judge, 1st Class (III), Haripur, and the learned Additional District Judge-II, Haripur in Suit No.301/1 of 1986-87 and Civil Appeal No. 81/13 of 1988, whereby respondents' suit for declaration, permanent injunction and in the alternative for possession was dismissed and the dismissal order was maintained by the learned Additional District Judge-II. Haripur, allowing the same by reversing the above concurrent judgments/decrees.

2. The brief facts are that one Faqir Hussain was tried and sentenced to death for causing the murder of Muhammad Aslam and Saleem pursuant to F. I. R. No.440 dated 2-9-1977 registered at Police Station Haripur, It seems that after the death sentence was awarded and the mercy petition of the condemned convict was pending before the President, he (Faqir Hussain) through a, registered sale deed No.649 dated 23-5-1983 attested on 24-5-1983 transferred 33/40 share in Khasra No.3582/8/2 measuring 3 Kanals, 5 Marla's situated within the revenue estate of Village Serai Saleh, Dist--ct Haripur, in which consideration amount shown was Rs.1,000, in favour of the legal heirs of murdered Muhammad Aslam i.e. the appellants, namely, widow and three sons (out of the sons one is minor) and the remaining 7/40 share was owned by respondent No.1, as a consideration of their pardoning/forgiving him (Faqir Hussain). It seems that the above convict was hanged to death on 21-3-1983. The respondents, as the legal heirs of Faqir Hussain, filed aforesaid suit for the above relief on the ground that since the above convict was hanged, the condition on which the transfer was made, the above transaction stood frustrated. The above suit was resisted by the appellants, inasmuch as they filed a joint written statement and pleaded that they abided by the compromise deed but could not stop the hanging to death of convict Faqir Hussain as the same was out of their power. The learned Civil Judge on the basis of the pleadings of the parties framed the following issues: "ISSUES: (1) Whether the plaintiffs have got a cause of action? (2) Whether the plaintiffs are estopped by their conduct to bring the present suit? (3) Whether the suit is bad and incompetent (4) Whether the suit is not properly valued for the purposes of jurisdiction and court-fee? (5) Whether the Court has got jurisdiction? (6) Whether defendants have acted upon the terms of compromise? (7) Whether plaintiffs are entitled to the decree prayed for? (8) Relief.

3. After recording evidence and hearing the parties, the learned Civil Judge recorded his finding on Issue No.6 as follows: "I have considered the respective pleas of the parties carefully Admittedly Faqir Hussain the predecessor-in-interest of the plaintiffs was given death penalty for killing Muhammad Aslam the predecessor in-interest of defendants and Saleem. As a last resort compromise was effected between the parties and the suit property was transferred by plaintiff No.1 and Faqir Hussain to defendants vide sale-deed No.649 dated 24-5-1983 by way of Diyat and Qisas and possession was also delivered. Exh.PW-2/1 is the copy of said sale-deed wherein no such condition is laid to the effect that in case life of Faqir Hussain could not be saved then the property would revert to the plaintiffs. It is evident from record that the defendants have played their role in accordance with the compromise but the Government unaccepted the same and consequently Faqir Hussain faced death for his acts of double murder. Plaintiffs have not been able to show that defendants backed out from the terms of compromise or did anything contrary to it. If the compromise was not accepted by the concerned authority obviously it was not due to the fault of defendants and, therefore, they should not suffer for the same. From the state position it follows that defendants have acted upon the terms of compromise. Therefore, they should nut be deprived of the property, which has already been transferred by way of Diyat and Qisas alongwith its possession, for no fault of theirs. The issue is decided in positive."

4. After having concluded as above under Issue No.6 the other issues were also decided in favour of the appellants. Consequently, respondents' above suit was dismissed through the aforesaid judgment/decree dated 28-5-1988. Thereupon, the respondents filed aforementioned Civil Appeal No.81/13 of 1988, which was dismissed by the learned Additional District Judge by his judgment/decree dated 13-2-1990. He concurred with the finding of the learned Civil Judge as under: "From the evidence on record it is crystal clear that the respondents have acted upon the terms and conditions of the compromise, therefore, the appellants are not entitled to the decree as prayed for. The learned Civil Judge has rightly dismissed the present suit. The appeal in hand being without merit is hereby dismissed."

5. Against the above concurrent judgments/decrees the respondents filed the above Civil Revision. The Learned Judge in Chamber held that the aforesaid registered sale-deed was void ab initio and it was a nullity. After having recorded the above finding, he allowed the above Civil Revision as under: "Consequently on acceptance of this petition the judgment and decree dated 28-5-1988 of the learned Judge of trial Court and the judgment and decree dated 13-2-1990 of the learned Judge of the Appellate Court are set aside, on acceptance of the plaint, the suit of the petitioners is decreed and the registered deed No.649 dated 23-5-1983 attested on 24-5-1983 by Sub-Registrar Haripur is cancelled and the Sub-Registrar, Haripur is directed to cancel the same in his own record. In the circumstances of the case the parties are left to bear their own costs.

6. The appellants filed petition for leave to appeal which was barred by time by 192 days, but the leave was granted, without going into the question of limitation which was ordered to be considered at the time of hearing of appeal, to consider whether the learned High Court could legally set aside the concurrent findings and as to whether on facts and circumstances of the case the registered sale-deed was hit by section 23 of the Contract Act.

7. In support of the above appeal, Mr. Muhammad Munir Peracha, learned counsel for the appellants has vehemently contended that the learned Judge in Chamber was not justified to set aside the concurrent judgments/decrees of the two Courts below on the ground that the same were void ab initio, though factually it was not so as found by the two Courts below. In support of the above submission, he has referred to the case of Karam Khan v. The State (1981 SCMR 1072) in which a review petition was filed seeking the review of a judgment of this Court dismissing the convict's appeal against the conviction and sentence of death in a murder case, on the ground that the patties had entered into a compromise whereby the legal heirs of the murdered person forgave the convict. This Court while declining the above review petition held that the above compromise could not be a ground for entertaining a review for altering death sentence into imprisonment for life. However, it was also observed that it was open to the petitioner to raise it in an application under Chapter XXIX of the Criminal Procedure Code. Learned counsel for the appellants also referred to the case of Muhammad Bashir v. The State (PLD 1982 Supreme Court 139). In the above case the compromise between the convict and the legal heirs of the deceased (murdered person) was considered a mitigating circumstance after 8 referring to Islamic point of view and the death sentence was converted into imprisonment for life The abovesaid principle has been followed in the following cases: (1). Iftikhar Ahmad v. The State (PLD 1982 SC 277). (2). Muzaffar alias Zafar Ali v. The State (1982 SCMR 695). (3). Javed and another v. The State (1983 SCMR 557). (4). Nazar Muhammad v. The State (1983 SCMR 631). (5). Nazar Muhammad v. The State (1983 SCMR 667). (6). Inayat Ullah and another v. The State (1984 SCMR 488). (7). Labah and another v. The State (1984 SCMR 1514). (8). Abdul Quddus v. The State (1985 SCMR 172). (9). Muhammad Hanif v. The State (1985 SCMR 612). (10). Ejaz Ahmed alias Jhajja v. The State (1985 SCMR 780). (11). Muhammad Aqeel alias Billa v. The State (1986 SCMR 1420). (12).Inayat and 5 others v. The State (1988 SCMR 148). (l3). Abdul Hameed and 4 others v. The State (1988 SCMR 1420).

8. On the other hand, Mr. M. Bilal, learned counsel for the respondents has urged that the above sale-deed was void ab initio as the consideration was in fact the compounding of the offence of murder. According to him, on 24-5-1983 when the above sale-deed was executed the Qisas and Diyat Ordinance was not in force and the offence of murder was not compoundable. His further submission was that in any case the above appeal is barred by 192 days and sufficient ground for condonation of delay has not been shown.

9. Adverting to the. above first submission, it may be pertinent to reproduce section 23 of the Contract Act, 1872 which reads as follows:-- "

23. The consideration or object of an agreement is lawful, unless

it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. 'A perusal of the above-quoted section indicates that it provides that the consideration object of an agreement is lawful unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. It provides that in each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

10. It may be pertinent to mention that though Mr. M. Bilal has not referred to the two judgments relied upon by the learned Judge in Chamber for taking the view which found favour with him, it would be proper to consider the same. In the case of Ghulam Mujtaba v. Allah Bachaya (PLD 1961 (W.P.) Baghdad-ul-Jadid 27) a Division Bench of the erstwhile High Court of West Pakistan held that a contract the consideration for which is the dropping of a criminal case about an offence which is not compoundable is unlawful and, I therefore hit by section 23 of the Contract Act. In the case of Kamini Kumar Basu and another v. Birendra Nath Basu and another (AIR 1930 Privy Council 100) it was held by the Privy Council that an implied term of contract that the E complaint would not be proceeded with made such a contract unlawful.

11. In our view, a distinction is to be made between a contract whereby a person agrees not to prosecute an uncompoundable offence and a contract whereby after the conviction of an accused by a competent Court the complainant party forgives the convict which may furnish to the convict a mitigating circumstance for reduction of the sentence. In the present case, the appellants had not agreed not to prosecute the accused for the murder nor they undertook to get the sentence of the convict reduced, they just forgave the convict. This forgiveness relates to their personal grievance which they had as the close relation of the deceased. Obviously, it had nothing to do with the prosecution of the accused which was the duty of the State. If the agreement would have been to the effect that the appellants would not appear as witness in support of the prosecution case or that they would procure acquittal of the accused, such an agreement would have been against the public policy and would have hit by section 23 of the Contract Act. We are, therefore, of the view that the finding of the two Courts below regarding the above sale-deed was not void account of being opposed to public policy was in consonance with law. The learned Judge in Chamber was not justified in reversing the above concurrent finding on the above question as to the legality of the sale-deed.

12. It may be observed that though under the Cr.P.C. and P.P.C. the offence of murder at the relevant time was not compoundable, but under the Islamic law it was compoundable and because of that Qisas and Diyat Ordinance was promulgated in the year 1991. In this view of the matter, the consideration to forgive on the part of the legal heirs of the deceased cannot be said to be opposed to public policy in terms of section 23 of the Contract Act keeping in view clause (1) of Article 227 of the Constitution which enjoins that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

13. Adverting to the question of limitation, it may be observed that the appellants in the application for condonation of delay have stated that the "Revision petition was disposed of vide judgment dated 24-11-1993. The learned counsel did not inform the petitioners about the fixation and disposal of the revision petition" and that "on 1-8-1994 the petitioner went to the office of the learned counsel to get information when he was informed". According to Mr. M. Bilal, learned counsel the above ground has never been considered as sufficient ground for condonation of delay particularly the delay of 192 days. He has relied upon the following cases: (i) Mustafa v. Settlement Commissioner, Bahawalpur Division, Bahawalpur (1974 SCMR 104): In the above case this Court dismissed the petition for leave to appeal which was barred by 411 days and the ground for condonation mentioned in the application was that the intimation letter sent by the petitioner's counsel was not received due to disturbed condition in the district. It was held that the petitioner was negligent in not keeping himself informed about the fate of his case and that the same was no ground. (ii) Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 SCMR 223): In the above case there was delay of 59 days and this Court declined to accept the ground that the Advocate of the petitioner did not intimate about the result of the appeal which was heard and reserved for judgment .in the High Court. It was held that counsel even if neglecting to inform client about the fate of the case, this fact not per se sufficient ground for condonation of delay when valuable right accrued to the opposite-party. (iii) Jhanda v. Maqbool Hussain etc. (1981 SCMR 126): In the above case also there was delay of 103 days in filing petition for leave and the ground in support of the condonation application was that the counsel for the petitioner had not informed him which fact was certified by the petitioner's counsel. However, this Court declined the petition on the ground of limitation. .

14. On the other hand Mr. M. Munir Peracha, learned counsel has contended that the limitation period of 60 days provided under Order XIII, Rule 1 of the Pakistan Supreme Court Rules, 1980 is to be construed liberally as it cannot be equated with the limitation period provided under the First Schedule to the Limitation Act. He has further urged that under Article 187 of the Constitution this Court is competent to pass any appropriate order for doing complete justice.

15. Mr. N. Bilal, learned counsel for the respondents in his rejoinder contended that the above Rules have been framed pursuant to the power conferred under Article 191 of the Constitution of the Islamic Republic of Pakistan, and therefore, they cannot be treated inferior to the First Schedule to the Limitation Act." .

16. In support of the above submission Mr. M. Munir Peracha, learned counsel for the appellants has referred to the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (AIR 1987 SC 1353) in which there was delay in filing of appeal before the Court below for a period of 4 days which was not condoned. In that context it was held that since the appeal involved important question the Court below should have adopted liberal approach for construing the word "sufficient cause" used in section 5 of the Limitation Act. The Indian Supreme Court allowed the appeal and condoned the delay of 4. days. Mr. Peracha also referred to the case of G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore (AIR 1988 SC 897) in which the High Court condoned the delay and it was held that it was open to the Supreme Court to examine the question as to whether the High Court had correctly condoned the delay. The above case has no application.

17. In the present case, there is a tie between the legal heirs of the deceased who was murdered and the legal heirs of the accused who had been hanged. It is difficult to hold that equity is on which side. Even if we were to hold that the equity is more on the side of the legal heirs of the deceased who was murdered and we were to take a liberal view, the delay is of a every long period of 192 days and not of few days or few weeks. It will not be appropriate to condone the delay of such a long period particularly when the ground which has been advanced by the appellant for condonation of delay has been repeatedly rejected by this Court in the above reports as a sufficient ground.

18. We are, therefore, of the view that the appeal is liable to be dismissed on the ground of limitation. It is dismissed as such with no order as to costs. M.B.A./F-25/S Appeal dismissed.