P L D 2012 Supreme Court 769 (PLP)

IJAZ AHMED CHAUDHRY, J.

Through the instant petition Muhammad Anwar petitioner/convict seeks permission to compound the offence and his acquittal on the basis of compromise arrived at between him and the legal heirs of Muhammad Nawaz deceased.

2. Briefly, background of the instant case is that Muhammad Anwar petitioner/ convict was tried along with nine other co-accused by the learned Additional Sessions Judge, Chiniot in case F.I.R. No.75 dated 2-3-2001, registered under sections 302, 324, 148, 149 and 109 P.P.C. at Police Station Bhowana Tehsil Chiniot District Jhang who vide judgment dated 8-6-2006 while giving benefit of doubt to the eight co- accused of the petitioner acquitted them but convicted Muhammad Anwar petitioner under section 302(b), P.P.C. and sentenced him to death with direction to pay Rs.50,000/- as compensation to the legal heirs of the deceased. By the same judgment Ghulam co-accused of the petitioner was convicted under section 324, P.P.C. and sentenced to seven years' R.I. with fine of Rs.20,000/- or in default whereof to suffer one year's S.I. he was also convicted under section 337-F(iii), P.P.C. and sentenced to three years R.I. with direction to pay Rs.20,000/- as Daman to Mst. Bakhat Bibi injured with benefit under section 382-B, Cr.P.C.

3. Challenging his conviction and sentence petitioner filed Crl. Appeal No.173-J/2006 before the learned Lahore High Court Lahore which was decided along with Murder Reference No.384 of 2006 sent by the learned Trial Court for confirmation or otherwise of death sentence awarded to the petitioner. The learned High Court vide judgment dated 21-1-2011 while maintaining conviction of the petitioner under section 302(b), P.P.C. converted death sentence into imprisonment for life with benefit under section 382-B, Cr.P.C. but maintained the order regarding payment of compensation with the change that in default of payment of compensation he shall further undergo six months' S.I. The petitioner challenged the aforesaid judgment passed by the learned Lahore High Court Lahore by filing Jail Petition No.88-L of 2011 before this Court whereas Sarfraz complainant also filed Cr.P.L.A. No.122-L of 2011 seeking leave to appeal against the aforesaid judgment of the Lahore High Court and enhancement of sentence of Muhammad Anwar from life to death.

4. During pendency of both the aforesaid matters, Muhammad Anwar petitioner moved the instant application (Cr.M.A. No.229-L of 2012) seeking permission to effect compromise with the legal heirs of Muhammad Nawaz deceased. The matter was referred to the learned Sessions Judge, Chiniot for his report about the genuineness of compromise arrived at between the parties. In compliance whereof the learned Sessions Judge summoned the legal heirs of Muhammad Nawaz deceased. Reportedly, the deceased has left behind Mst. Bhagin mother, Fatima Bibi widow, Shah Nawaz, Ali Imtiaz, Hasnain Nawaz sons and Noor Begum daughter out of whom Ali Imtiaz, Hasnain Nawaz sons and Noor Begum daughter are minors. Statements of Mst. Bhagin Bibi mother, Fatima Bibi widow and Shah Nawaz son of Muhammad Nawaz deceased have been recorded who all have stated that they have forgiven the convict Muhammad Anwar in the name of Allah Almighty without accepting Badl-e-Sulah. Fatima Bibi widow of Muhammad Nawaz deceased has also stated that she has accepted 2/3 of 03 kanals and 19 marlas of land valuing Rs.68,000/- transferred through mutation No.1168 dated 16-5-2012 in the name of his minor son Hasnain and she has received defence saving certificates valuing Rs.1,02,000/- purchased in the names of Noor Begum daughter and Ali Imtiaz son according to their share of Diyat amount being Wali of the minors. The learned Sessions Judge, Chiniot has submitted his report dated 12-6-2012 before this Court.

5. After hearing learned counsel for the parties and perusing the record we are satisfied that the compromise effected between the parties is genuine and the same has been effected between the parties with their own free will and consent without any external pressure but at the same time we are not satisfied to the extent of Diyat amount paid to the minor legal heirs of the deceased. Hence, question regarding the rate of Diyat amount perplexed us because Diyat amount has been paid to the minor legal heirs of the deceased at the rate prevalent at the time of commission of offence in the year 2000-2001 as at that time as per notification issued by the Government of Pakistan, the rate of Diyat was Rs.2,69.176/-. Now the question to be determined by this Court is as to whether the Diyat amount is payable to the minor legal heirs of the deceased at the rate prevalent at the time of commission of offence (i.e. 2001) or at the time of arriving of the compromise between the legal heirs of the deceased and the convict? Although there is not a plethora of case-law on the subject but a judgment rendered in this respect by our lord the Chief Justice Iftikhar Muhammad Chaudhry in suo motu action regarding non-payment of the compensation amount to the poor electrician who was pressurized by the political figure of PML(N) as well as by the police to enter into a compromise with the accused Murderers of his 12 years old son reported in 2012 Supreme Court Monthly Review 437 holds the field. Though we show our contentment on the aforesaid judgment authored by our lord the Chief Justice regarding determination of amount of Diyat according to the rate prevailing at the time when the compromise was effected between the parties, yet, we add a bit of our state of mind for our own satisfaction that the compromise in between the legal heirs of the deceased and the convict is a type of a contract that if the legal heirs of the deceased make a statement before the Court of law pardoning the convict they will get Badl-e-SuIan in the shape of Diyat amount and if they forgive the convict in the name of Almighty Allah they will get reward thereof from the Allah Almighty. In case there are some minor legal heirs of the deceased, their natural guardian i.e. mother or father, as the case may, do forgive the convict but their interest is to be safeguarded by paying them their due share as Diyat amount according to the rate of Diyat prevailing at the time of arriving at of the compromise between the parties as contract could not have retrospective effect. More so, under section 299(e) of Pakistan Penal Code Diyat means the compensation specified in section 323 of the Code ibid payable to the heirs of the victim according to which value of Diyat shall have to be fixed by the court subject to the Injunctions of Islam as laid down in the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim which shall not be less than the value of thirty thousand six hundred and thirty grams of silver. According to subsection (2) of section ibid the amount of Diyat shall be declared by the Federal Government by notification in the official gazette on the first day of July each year or on such date as it may deem fit which shall be the value payable during a financial year. In view of the language of section 323 of Pakistan Penal Code it is crystal clear that the value of the Diyat amount is to be assessed by the Court which shall not be less than the value of thirty thousand six hundred and thirty grams of silver, thus, it is apparent that the rate of Diyat in vogue at the time of compromise shall be applicable and not the rate prevailing at the time of commission of offence. In the instant case since the compromise is being effected during the financial year of 2011-12, therefore, the rate of Diyat declared by the Government of Pakistan vide Notification dated 1-7-2011 i.e. Rs.31,55,542/- is payable to the minor legal heirs of Muhammad Nawaz deceased. In such circumstances the share of each minor son is calculated at Rs.7,88,885.40 whereas the share of minor daughter of the deceased according to her legal share is Rs.3,94,442.75, as such, the accused/convict is duty bound to pay Diyat amount to the minor legal heirs of Muhammad Nawaz deceased in accordance with the aforesaid calculation.

6. The nutshell result of the aforesaid findings is that we allow the parties to compound the offence subject to payment of aforesaid calculated amount by the accused/convict to the minor legal heirs of the deceased Muhammad Nawaz. Resultantly, Crl.M.A. No.229-L/2012 is accepted, consequently Cr. J.P. No.88/2011 is converted into appeal and allowed and Muhammad Anwar convict is acquitted of the charge whereas Cr.P.L.A. No.122-L/2011, filed by the complainant for enhancement of sentence of convict, is disposed of as having become infructuous in view of the compromise between the parties. Muhammad Anwar convict shall be released from jail, if not required to be detained in any other case, subject to payment of Diyat amount to the minor legal heirs of Muhammad Nawaz deceased according to their shari share as calculated above after deducting the amount already paid to them in the shape of land and saving certificates to the satisfaction of the learned Sessions Judge, Chiniot. In case the Muhammad Anwar convict does not pay the share of Diyat amount to the minor legal heirs of the deceased, the compromise shall have no effect on the parties and they will be at liberty to make applications for resurrection of these petitions before this Court for decision on merit in accordance with law. M.W.A./M-38/S Order accordingly.