2001 P Cr (PLP)

The trial Court has misread and misunderstood the provision of section 311, P.P.C. The trial Judge was left with no option but to accept the compromise if the requirements are complete. Section 311, P.P.C. is applicable in those cases where there is no compromise as a whole then discretion can be exercised by the Court. The legal heirs of the deceased have waived their right of Oisas without compensation under section 309, P.P.C. With regard to waiver or compounding of offences Honourable Supreme Court in case of Nazakat Hussain v. The State (ibid) has observed the guidance for the subordinate Courts. The same is reproduced as under:‑‑ (i)???????? In case of Qatl‑e‑Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties, i.e.. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C. (ii)??????? In case of Qatl‑e‑Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meaning of sections 309 and 310, P.P.C. during the pendency of appeal, applications for permission to compound the offence shall be made before the appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C. (iii)?????? Under section 338‑E(1), P.P.C. subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C., relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C., shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C. and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused. (iv)?????? If a question arises as to whether any person is or is not the legal heirs of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties. (v)??????? For the purpose of determination of questions relating to the waiver or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338‑E(1), P.P.C. It is also advantageous to reproduce sections 309 and 310, P.P.C. pertaining to the waiver and compounding of right of Qisas:‑‑ "

309. Waiver‑Afw of Oisas in Oatl‑e‑Amd.‑‑‑ (1) In the case of Qatl‑e?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, any 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." "

310. Com oundine of Oisas (Sulh) in Oatl a Amad.‑‑‑ (1) In the case of Qatl e‑Amd, an adult sane Wali may, at any time on accepting Badal‑e‑Sulh, compound his right of Qisas; Provided that giving a female in marriage shall not be a valid Badal?e‑Sulh." (2)??????? Where a Wali is a minor or an insane, the Wali of such minor or insane Wali may compound the right of Qisas on behalf of such minor or insane Wali: Provided that the value of Badal‑e‑Sulh shall not be less than the value of Diyat. (3)??????? Where the Government is the Wali, it may compound the right of Qisas; Provided that the value of Badal‑e‑Sulh shall not be less than the value of Diyat. (4)??????? Where the Badal‑e‑Sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of Qisas shall be deemed to have been compounded and the offender shall be liable to Diyat. (5)??????? Badal‑e‑Sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the Wali." It is obvious that there was compromise in respect of compounding of Qisas as well as compounding of offence and it was incumbent upon the trial Court to pass necessary orders under section 345(6), Cr.P.C. and acquit the accused. The trial Court has wrongly applied the provisions of Fasad‑fil‑Arz without collecting any evidence pertaining to the past conduct and previous convictions etc. From the perusal of the order, dated 27‑11‑2000, it is clear that the trial Court has neither accepted the compromise application nor rejected the same. It is mandatory upon the Court to examine as to whether any person is or is not the legal heir of the deceased. These facts shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties. It appears that the compromise of present applicants has been refused under discretionary powers of the Court under section 311, P.P.C. The Court should not act and insist upon the strict phrases of provisions of G law relating to discretion which may bring some unpleasant result in future. Therefore, the order dated 27‑11‑2000 passed by the trial Court is set aside and Sessions Case No.222 of 2000 is transferred from the Court of learned Additional Sessions Judge, Gambat to the Court of learned Sessions Judge, Khairpur with a direction to hear the concerned parties and pass necessary order in respect of compromise application according to law. The present revision application is disposed of in above terms. H.B.T./S‑92/K???????????????????????????????????????????????????????????????????????????????????? Order accordingly.