2018 PLP 193 (YLRN)

ADNAN-UL-KARIM MEMON, J.

Through instant Criminal Revision Application, the Applicant has impugned Order dated 24.03.2014 passed by learned I-Additional Sessions Judge, Karachi, West in Sessions Case No.301/2013, whereby Application under section 345(2) Cr.P.C. moved on behalf of Applicant was allowed with direction to Applicant/ Accused to pay 'diyat' amount of Rs. 500,000/- out of which Rs.100,000/- shall be paid to each minor son namely Badar, Ameen, Naeem and Rasees and Rs.50,000/- to each minor daughter Afshan and Misha.

2. Brief facts of the case are that on 14.03.2012 Complainant namely Bakhti Karam lodged FIR No.96/2012 at Police Station Site-B, Karachi for offence under section 320, P.P.C. Police submitted Charge Sheet against Accused (Ghulam Shabbir) before learned Trial Court; that Accused (Ghulam Shabbir) filed Application under section 345(2) and (6) of Cr.P.C. on 17.11.2012 for allowing the parties to enter into compromise. Learned Trial Court vide Order dated 24.03.2014 allowed the said Application with directions to Applicant/Accused to pay 'diyat' amount of Rs.500,000/- for minors as stated in paragraph No. 1 supra. Applicant being aggrieved by and dissatisfied has impugned Order dated 09.10.2010 in this Court by filing instant Criminal Revision Application.

3. Mr. Muhammad Ijaz Tanoli, learned counsel for the Applicant has contended that impugned Order dated 24.03.2014 passed by learned Trial Court is against the basic spirit of law and injunction of Islam; that learned Trial Court has failed to appreciate that Complainant and other legal heirs of deceased Bukhtiar Khan have compromised with Applicant by forgiving him in the name of Almighty Allah therefore, Applicant cannot be compelled to pay diyat; that learned Trial Court has erred in directing the Applicant to pay diyat amount of Rs. 500,000/- to legal heirs of deceased; that learned Trial Court has erred in holding that diyat amount cannot be waived on behalf of minors in a situation where parties have entered into compromise under section 345(2)(6), Cr.P.C. Learned counsel further contended that awarding punishment without trial when parties have entered into compromise is not permissible under the law therefore, the impugned order to the extent of payment of Diyat amount is suffering from material illegality. Learned counsel lastly prayed for allowing the parties to enter into compromise outside the Court so that consequently Applicant may be acquitted from the charge. In support reliance is placed upon the case of Muhammad Hanif v. The State (1993 PCr.LJ 166), Allauddin v. The State (2001 MLD 1757), Nazir Ahmed and others v. The State (1995 PCr.LJ 1058), Muhammad Mazhar v. The State (1992 PCr.LJ 443), Jawaid Nazar Laskani v. The State and another (2012 PCr.LJ 293), Muhammad Arif v. The State (2001 PCr.LJ 1804), Muhammad Sadiq v. The State 2005 MLD 458 unreported Order dated 02.02.2011 passed in Criminal Appeal No. 142 of 2005, unreported Order dated 09.08.2006 passed in Cr. Appeal No.35/2002, unreported Order dated 11.07.2007 passed in Cr. Appeal No.42/2007, Zulfiqar Ali v. The State (1993 PCr.LJ 168), Nazir Ahmed and others v. The State (1995 PCr.LJ 1058), Muhammad Mazhar v. The State (1992 PCr.LJ 443), Zahid Rehman v. The State (PLD 2015 SC 77), Federation of Pakistan and others v. Gul Hassan Khan (PLD 1999 SC 633).

4. Mr. Zahoor Shah learned DPG has opposed the grant of instant Revision Application. He contended that learned Trial Court has rightly allowed the compromise application with direction to the Applicant/Accused to pay diyat amount to the minors; that right of diyat amount cannot be waived on behalf of the minors under Pakistan Penal Code; that the instant Criminal Revision is not maintainable to the extent of direction for payment of diyat amount in the impugned Order which even otherwise does not suffer from any error or irregularity.

5. I have heard learned counsel for the parties, perused the material available on record and case law cited at the bar.

6. There is no cavil to the legal position that proviso to subsection (1) of section 338-E, P.P.C. clearly contemplates acquittal of an accused person on the basis of compounding of an offence by invoking the provisions of section 310, P.P.C. And, the effect of such compounding is also clarified in most explicit terms by subsection (6) of section 345, Cr.P.C.as reproduced below: "The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence been compounded"

7. After introduction of Islamic provisions in the Pakistan Penal Code, 1860 an accused person is enabled to seek/obtain acquittal in a case of murder either through waiver/AFW under section 309, P.P.C. or on the basis of compounding/Sulh under section 309, P.P.C. or on the basis of compounding/ Sulh under section 310, P.P.C. In case of waiver/AFW accused can be acquitted without any monetary payment to the heirs of the deceased but in case of compounding / Sulh an acquittal may be obtained upon acceptance of Badle Sulh by the heirs of the deceased from the accused person. In the present case, Applicant is seeking compromise on the basis of compounding of offence by the legal heirs of the deceased under sections 345 (ii) and 345(6), Cr.P.C. without payment of diyat amount to the minors of deceased.

8. Diyat is one of the forms of punishment specified in section 53, P.P.C. and it is to be fixed by the Court under sections 299(e) and 323 of P.P.C. Secondly, Trial Court can direct the accused to pay Diyat amount to minors of deceased after determination, as provided under section 338-E (2), P.P.C. In other words, accused can be directed to pay diyat amount if he is earning acquittal under sections 345(ii) and 345(6), Cr.P.C. In the instant case Learned Trial Court has directed the applicant to pay Diyat amount to the minors in order to protect the interest of minors. It is noted that that right of diyat amount cannot be waived on behalf of the minors under P.P.C. I am fortified by the decisions rendered by the Hon'ble Apex Court in the cases of Zia alias Ahmi v. The State (2011 SCMR 1444) and Ali Muhammad v. The State (2011 SCMR 1964) in both the cases the Hon'ble Apex Court secured and safeguarded interest of minor heirs of deceased. Therefore; I do concur with the view taken by learned Trial Court and hold that the impugned Order is not suffering from material illegality and irregularity.

9. In view of the facts, circumstances and law discussed above the impugned Order dated 24.03.2014 passed by learned I-Additional Sessions Judge, Karachi West in Sessions Case No.301/2013 is maintained, therefore, the instant Revision Application is dismissed. JK/G-2/Sindh Revision dismissed.