P L D 2010 Quetta 30 (PLP)

Cr.M.A.No.265 of 2009 The Sessions Judge, Kalat Division at Mastung vide judgment dated 25-8-2004 convicted and sentenced the applicant Muhammad Azam under section 302 P.P.C. to suffer imprisonment for life in Sessions Case No.15 of 2003. The applicant assailed the aforesaid judgment by filing Criminal Jail Appeal No.93 of 2004 before this Court and vide judgment dated 3-6-2009, the sentence of imprisonment for life was converted into death and appeal was dismissed.

2. Mst. Reshi and Kanwar Chand, legal heirs of deceased Bajan Dass filed instant application under section 345 Cr. P. C., seeking acceptance of the compromise executed between them and accused/applicant. Along with compromise papers, a certificate dated 7-8-2009 of Engineer Basant Lall Gulshan, Provincial Minister, Balochistan, has also been filed, showing Mst. Reshi and Kanwar Chand are sole legal heirs of deceased.

3. Malik Zahoor Ahmed Shahwani, Prosecutor-General, has submitted that it requires confirmation whether they are the only legal heirs of deceased or not, Mr. Sundar Dass, Advocate, present in the Court, has voluntarily appeared and stated at bar that he personally knows the family of deceased and confirmed that they are the only legal heirs of deceased, who are entitled for inheritance; however, he has submitted that deceased has a daughter, who is married and under the Hindu Law of inheritance, a daughter, who is married, cannot be considered for a share of inheritance, therefore, she has not been impleaded as legal heirs in the compromise.

4. Here question arises as to whether the legal heirs of deceased, being non-Muslim, can enter into compromise with a Muslim accused within the meaning of sections 309 and 310 P.P.C. which read as under: "

309. Waiver-Afw of qisas in Qatl-i-amd. (1) In the case of Qatl-i-amd an adult sane wali may at any time and without any compensation, waive his right of qisas: Provided that the right of quisas 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 gisas 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. Compounding of qisas (Sulh) in Qatl-i-amd.--(1) In the case of Qatl-i-amd, an adult sane Wali, may, at any time on accepting Badal-i-sulh, compound his right of qisas: [Provided that a female shall not be given in marriage as otherwise in badal-i-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: (3) Provided that the value of badal-i-sulh shall not be less than the value of diyat. (4) Where the government is the wali, it may compound the right of qisas: Provided that the value of badal-i-sulh shall not be less than the value of diyat. (4) Where the badal-i-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-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.

5. In view of above provision of law, the powers have been granted to wali either to enter into compromise or to compound the matter with accused. As per section 305 P.P.C., wali has been defined as under:

"

305. Wali.

In case of gatl, the wali shall be: (a) the heirs of the victim; according to his personal law; [but shall not include the accused or convict in case of qatl-i-amd if committed in the name or on the pretext or honour]; and (b) the Government, if there is no heir." Thus, it is crystal clear from the above provisions of law that wali means a person, who is entitled for the inheritance of deceased, irrespective of the fact as to whether he is Muslim or non-Muslim. The authority quoted by the learned counsel for applicant reported in 2001 PCr.LJ 318 is fully attracted to the facts and circumstances of instant case, wherein it has been observed as follows:

"

S.345

Compounding of offence

Offence can be compounded between a Muslim and non-Muslim and even between non-Muslim inter se

Section 345, Cr.P.C. under which compounding of offence is regulated does not provide for any competence or otherwise of a person entering into a compromise, nor does it restrict a Muslim or a non-Muslim from entering into such compromise

Only qualification for entering such application is the compoundability of the offence and nothing more."

6. The legal heirs of deceased appearing before us have produced their identity cards, supported the contents of compromise by affidavits as well as a certificate issued by the Provincial Minister for Human Rights and Minorities, who has also verified and confirmed that they are the only legal heirs of deceased Bajan Dass and further confirmed by Mr. Sundar Dass, Advocate.

7. Learned Prosecutor-General, in such view of the matter, did not raise any objection for acceptance of the compromise. Thus, in the given circumstances, the compromise arrived at between the parties is accepted and in pursuance thereto judgment of this Court dated 3-6-2009 is hereby withdrawn. Resultantly, the applicant Muhammad Azam alias Aslam is acquitted of the charge. He be set at liberty if not required in any other case. N.H.Q./7/Q Compromise accepted.