2012 P Cr (PLP)

MRS. SYEDA TAHIRA SAFDAR, J.

It is a criminal quashment petition filed by the petitioners feeling aggrieved of order dated 28th March, 2012 of Additional Sessions Judge-VI, Quetta whereby the miscellaneous application submitted by the petitioners seeking transfer of movable property in favour of minor legal heirs of deceased in lieu of Diyat amount, was refused. It was contended that the trial court made the order in violation of section 310, Pakistan Penal Code (P.P.C.), thereby failed to understand the relevant provision of law. Further, the observations recorded by the trial Court about insecurity of landed property was also misconceived, without any legal sanctity, therefore, not sustainable. It was prayed that the impugned order dated 28th March, 2012 be set aside, and the application submitted by the petitioner to the effect be accepted.

2. The learned counsel for the petitioners while arguing his case was of the view that they (petitioners) might have been allowed to pay Diyat amount in shape of landed property keeping in view their financial position. He further argued that the matter had already been compromised between the parties, and the major Walis of the deceased have waived their right of Qisas. But the only question remained for determination was about the minor legal heirs of the victim. The learned counsel referred to sections 310, 323 and 331, Pakistan Penal Code (P.P.C.). It was further contended that the mode of payment of Diyat amount was to be considered by the trial court in accordance with relevant provisions of law, which was not done. He also referred to Diyat, Arsh and Daman Fund Rules, 2007, with contention that the law provide help to the accused persons, who entered into compromise with their opponents. Learned counsel relied upon judgment titled as Suo Motu Action regarding non-payment of the compensation amount to the poor electrician, who has been 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 SCMR

437. Learned Additional Prosecutor-General in reply also referred to the same provisions, but contested the prayer of payment of Diyat in shape of landed property. She relied upon judgment titled as Chairman Agriculture Development Bank of Pakistan v. Mumtaz Khan reported in PLD 2010 SC 695.

3. During course of arguments it was asked from the learned counsel for the petitioners, Additional Prosecutor-General, and the respondent that whether the trial Court had made any order in respect of the compromise, submitted by the parties either accepting or rejecting it and made order for payment of the diyat amount thereby fixed. But it was their reply that it was the only order made by the trial court questioned through instant petition, therefore, the record of the trial Court was called and perused. The perusal reveals that during course of trial the petitioners submitted an application along with papers of compromise, disclosing the fact about settlement of dispute and waiver of their right of Qisas, and Diyat. To get affirm the same, commission was appointed and the statements of the ladies to the compromise were recorded. But it is very much apparent that the trial court failed to make any decision thereby accepting or rejecting the compromise, rather ordered for payment of Diyat amount, without even describing the amount, which was to be paid. Rather from the order sheets dated 16th November, 2011, 26th November, 2011 and 14th December, 2011 only directions were given for payment, without even mentioning the amount. The record further reveals that meanwhile an application was filed by the petitioners/accused persons seeking permission for payment of diyat amount in shape of landed property. The trial Court through order dated 28th March, 2012 declined the request, with direction that the amount of Diyat be deposited in the Bank in saving account with minor, legal heirs within fifteen (15) days. It is the order assailed through instant petition.

4. From the perusal of the case file it appears that the trial Court on submitting of compromise failed to decide the case in accordance with law. Rather, gave directions to the accused persons for payment of Diyat amount without, even assessing the Diyat amount, and specifying the shares of the minor legal heirs, which was of no legal effect. Because, as per requirement of law the trial court has to make a specific order for acceptance or rejection of a compromise submitted by the parties, thereby made decision in the case either of acquittal or conviction of the accused persons from the offence charged thereof. The Diyat amount is to be fixed, and mode of its payment is to be determined thereon. But in case in hand, the procedure had not been adopted. There is no decision of the court in the case pending before it, which is to be decided in accordance with law. The trial Court is required to make a decision and payment of Diyat amount is also part of it. The trial Court had completely failed to adopt the legal course.

5. Furthermore, the trial Court seemed to be under some misconception, thereby assuming acquittal of the accused persons only on submitting of the compromise effected between the parties. But it is advisable to note that the ultimate result of compromise is not automatic acquittal of the accused persons from the charge, rather the court has to look into merits of the case before making an order of acceptance or rejection of the compromise arrived between the parties, thereby acquitting or convicting the accused person. Further, sections 305, 307, 309, 310, 311, 323, 330, 331, P.P.C. read with section 345(2), Cr.P.C. provided a complete procedure for effecting of settlement of dispute between the parties; it may be in shape of compounding of qisas or waiver. In each case the trial Court has to make decision keeping in view the merits of the case. Furthermore, entitlement for diyat, and the amount of the diyat is also to be determined by the trial Court in specific terms keeping in view section 323, P.P.C. Furthermore, even if the major walies forgone their right of Diyat, the share of the minor legal heirs are to be assessed, the mode of the payment of diyat is to be determined keeping in view the provisions of section 310 and 331, P.P.C., as the case may be. In view of the above discussion, the petition is hereby accepted. The impugned orders dated l6th November, 2011, 26th November, 2011, 14th December, 2011 and 28th March, 2012 are hereby set aside. The trial Court is directed to proceed with the matter strictly in accordance with law. The record of the trial Court be sent back immediately. MWA/54/Q Petition accepted.