1997 PLP 2703 (MLD)

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑Ghulam Hussain and seven others had been tried by a learned Additional Sessions Judge of Bhalwal for the murder of Umar Hayat and his step‑mother, namely, Mat. Mahri. Two of the alleged assailants, namely, Abbas and Aslam were not tried as they had, reportedly, become absconders.

2. Through a judgment dated 24‑5‑1992, the said learned trial Court while acquitting seven of the accused persons who had been tried, found Ghulam Hussian guilty of the charge and after convicting him accordingly punished him with death on each count under section 302, P.P.C.

3. Murder Reference No.228 of 1992 seeks confirmation of the said sentence of death while Ghulam Hussain convict impugns his above‑noticed conviction and sentences through Criminal Appeal No.497 of 1992. Both these matters are being disposed of together through this single judgment.

4. During the pendency of these matters, it was submitted through Criminal Miscellaneous No. l of 1993 that the heirs of the two deceased persons had pardoned the assailants including the present appellant and it was consequently prayed that he be acquitted.

5. Muhammad Aslant, a brother and thus an heir of Umar Hayat deceased was stated to be undergoing sentence in Mianwali Jail and it had, therefore, been ordered by us on 30‑3‑1993 that the Sessions Judge of Mianwali shall record the statement of the said accused Muhammad Aslam with regard to the factum of the composition of the offence as abovementioned. The learned Sessions Judge of Mianwali recorded this statement on 6‑4‑1993 and the same has been received in this Court.

6. Bati Khan (father), Ahmad Khan (brother), Mst. Fateh Bibi and Mst. Sardaran Bibi (sisters) have appeared before us as the heirs of Umar Hayat deceased besides Muhammad Aslant abovementioned. Their statements have been separately recorded on oath.

7. From these statements it transpires that Umar Hayat deceased was not married at the time of his murder; that his mother is also not alive and that in the circumstances he has left behind only his abovementioned father, the 'two brothers and two sisters as his only heirs, It has further transpired that the wife of Bati Khan who was the mother of Umar Hayat deceased, had died long ago whereafter he had married Mst. Mahri deceased. It was deposed before us that Mst. Mahri deceased was an old woman who had migrated to this area after the murder of her daughter and that her husband, her parents and her issues had died long before her death. Bati Khan had further claimed on oath that apart from him, Mst. Mahri had left no known legal heir up to seven degrees.

8. It was further stated before us that one Fazal Ahmad who was the father of Khizar Hayat (acquitted accused), Ghulam Rasool (acquitted accused), Abbas (absconder), Aslam (absconder) and the brother of Mauloo (acquitted accused) had been murdered in which connection the abovementioned Bati Khan (the father of Umar Hayat deceased of the present case), Ahmad Khan (the brother of Umar Hayat deceased of the present case), Aslam (brother of Umar Hayat deceased) and seven others had been tried and Aslam abovementioned and cousin of Umar Hayat deceased, namely, Ghulam Shabbir had been convicted and sentenced. It also transpired that the abovementioned Aslam is presently in Mianwali Jail serving the sentence of life imprisonment awarded to him for the murder of the said Fazal Ahmad. It was also deposed before us that the composition of the present offence is a result of the overall compromise reached between the parties wherein Ghulam Hussain appellant party has granted Afw to the brother and the cousin of Umar Hayat deceased of the present case while the heirs of Umar Hayat deceased and Mst. Mehri deceased have granted Afw to Ghulam Hussain appellant and others.

9. In view of the above‑noticed statements made before us by the heirs of the two deceased persons, we are satisfied that the said heirs are the only heirs of the two deceased persons and that they have voluntarily granted Afw to Ghulam Hussian appellant and his other co‑accused. Nothing exists on record which could persuade us not to act upon the Afw so granted or to punish the appellant by way of Tazir.

10. Consequently, the conviction and the sentences recorded against Ghulam Hussain appellant through judgment dated 24‑5‑1992 of Additional Sessions Judge, Bhalwal are set aside and he is acquitted of the charges levelled against him as envisaged by the provisions of section 345 of the Cr.P.C. He shall be set at liberty forthwith if not required to be detained in any other case.

11. Criminal Appeal No.497 of 1992 is thus allowed and Murder Reference No.228/1992 is accordingly disposed of in the above terms. N.H.Q./G‑139/L Appeal allowed.