2002 PLP 196 (YLR)

MIAN MUHAMMAD JEHANGIR, J.

By this Judgment Criminal Appeal No. 171 of 2000, and Murder Reference No. 420 of 2000 are being disposed of as the said matters have emerged from the judgment passed by the Sessions Judge, Khanewal, dated 16-2-2000, whereby in the charges under sections 302/324/337-A (ii) and 337-F(ii)/34 P.P.C. the appellants Mahmood Hassan and Muhammad Akram were convicted arc' sentenced as under:-- (I) Mehmood Hassan appellant (i) Capital punishment and to pay a sum of Rs. 50,000 (Rupees fifty thousands only) disbursable among the legal heirs of Mehmood Hussain deceased in the event of realization or serve six months' R.I. in default, under the first count, so as to be hanged by the neck till declared dead, subject of course to confirmation of the death penalty by this Court. (ii) Capital punishment and to pay a sum of Rs.50,000 (Rupees fifty thousand) disbursable among the legal heirs of Mst. Maqsoodan Mai deceased in the event of realization or serve six months R.I. in default, under the second count, so as to be hanged by neck till declared dead, subject of course to confirmation of the death penalty by the Honourable High Court. (iii) Seven years R.I. and to pay a fine of Rs. 20,000 (Rupees twenty thousands) or serve six months R.I. in default for the attempt on the life of Sarfraz and pay Rs.20,000 (Rupees twenty thousand) by way of Arsh worth Rs.12,750 and Daman worth Rs.6,250 for causing Shajja-i-Mudihah and Ghari Jaifa Damiyah under the, third count (disbursable to the concerned victim Sarfraz); (b) Seven years R.I. and to pay a fine of Rs. 20,000 (Rupees twenty thousands) or serve six months R.I. in default; for the attempt on the life of Mst. Reshma; and also pay Rs. 10,000 (Rupees ten thousands) as Daman for Shajjah-i-Khafifah on her person under fourth count (disbursable to the concerned victim Mst. Reshma) and suffer one year R.I; (c) Seven years R.I. and to pay a fine of Rs. 20,000 (Rupees twenty thousand) or serve six months R.I. in default; for the attempt on the life of Khizar Abbas and also pay Rs.10,000 (Rupees ten thousand) as Daman and suffer one years R.I. for Shajjah-I- Khafifah on his person under fifth count (disbursable to the concerned victim Khizar Abbas). (II) Muhammad Akram appellant (i) Life imprisonment, and to pay a sum of Rs. 50,000 (Rupees fifty thousands) disbursable among the legal heirs of Muhammad Hussain deceased in the event of realization) or serve six months R.I in default under the first count (ii) Life imprisonment, and pay a sum of Rs. 50,000 (Rupees fifty thousand) disbursable among the legal heirs of Mst. Maqsoodan Mai deceased (in the event of realization) or serve six months' R.I. in default under the second count: (iii) (a) Seven yeas R.I and to pay a fine of Rs. 20,000 (Rupees twenty thousands) or serve six months' R.I in default for the attempt on the life of Sarfraz; and pay Rs. 20,0, (Rupees twenty thousands) by way Arsh worth Rs. 12,750 and Dam and Ghair Jaifa Damiyah under the third count (disbursable to concerned victim Sarfraz); (b) Seven years R.I. and to pay a fine of Rs. 20,000 (Rupees twenty thousands or serve six months R.I. in default; for the attempt on the life of Mst. Reshma; and also pay Rs.10,000 (Rupees ten thousand) ; as Daman for Shajjah-i-Khafifah on her person under fourth count (disbursable to the concerned victim Mst. Reshma) and suffer one year R.I.; (c) Seven years R.I and to pay fine of Rs.20,000 (Rupees twenty thousand) or serve six months' R.I. in default for the attempt on the life of Khizar Abbas and also pay Rs. 10,000 (Rupees ten thousand) as Daman and suffer one years R.I. for Shajjah-I- Khafifah on the person under fifth count (disbursable on the concerned victim Khizar Hayat).

2. Some relevant facts on the prosecution case for the purpose of disposal of the abovementioned matters as disclosed in the F.I.R. Exh.P.I registered at the instance of Muhammad Sarfraz are that about 10/11 a.m. on 25-5-1997 his uncle Muhammad Hussain, Maqsoodan Bibi wife of his uncle, Mst. Reshma aged 4-years, Khizar Abbas aged 7/8 years were present outside the boundary wall of his house meanwhile Muhammad Iqbal son of Wali Muhammad, Mehmood son of Muhammad Iqbal, and Muhammad Akram son of Allah Bakhsh came on a truck at the spot while Mehmood was driving the truck bearing Registration No. 2738/PH,, Muhammad Iqbal while alighting from the truck started abusing to Muhammad Sarfraz; Muhammad Akram also deboarued from the truck and gave slaps to him, whereupon Muhammad Hussain his uncle made an effort to separate them but Muhammad Iqbal asked to Mehmood and Muhammad Akram the present appellants to crush the entire family of Muhammad Sarfraz by crossing the truck over them on which Muhammad Akram hurriedly sat on the adjoining seat of Mehmood, and thereafter Mehmood started the truck rashly and negligently and trampled the members of the complainant party as a consequence of which Muhammad Hussain and Maqsoodan Mai after sustaining the injuries died at the spot while Sarfraz complainant himself, Reshma and Khizar Abbas son of Khursheed widow of Abdul Qayuum suffered serious injuries. The case was registered under sections 302/324/34, P.P.C. and after completing the necessary investigation challan was submitted in the Court for trial of the accused. At the close of the trial while finding the case of the prosecution to have been proved the learned Court convicted and sentenced the appellant as mentioned above.

3. During the pendency of the appeal an application bearing Criminal Miscellaneous No. 214-M of 2000 was moved by the appellants disclosing therein the compromise with legal heirs of the deceased and the injured persons. Since Muhammad Hussain and Mst. Maqsoodan Bibi, the deceased were the husband and wife, therefore, the name of their legal heirs as given in the abovementioned application, were as under:

(i) Mst. Rukhsana Bibi daughter of Muhammad Hussain deceased wife of Muhammad Ramzan (ii) Muneeban Bibi D/o Muhammad Hussain deceased wife of Muhammad Afza, aged 24 years. (iii) Sultana Kishwaer D/o Muhammad Hussain, deceased wife of Muhammad Shafique, aged 22 year; (iv) Tasawar Ahmad Son of Muhammad Hussain deceased aged 19 years (v) Muhammad Munawar Son Muhammad Hussain deceased aged 15 years, minor; (vi) Uzma D/o Muhammad Hussain deceased, aged 13 years. (vii) Muhammad Waqas son of Muhammad Hussain. Aged 10 years minor; and (viii) Muhammad Waqar son of Muhammad Hussain deceased aged 7 years minor. While the names of the injured persons were as follows: - (i) Muhammad Sarfraz, complainant. (ii) Mst. Reshma (minor) (iii) Khizar Abbas son of Mst. Khursheed widow of Abdul Qayyum, (minor)

4. Upon the receipt of the above mentioned petition my learned brothers Bashir A.. Mujahid and Muhammad War Yaseen, JJ. sent a copy of the petition along with allied documents to the learned Sessions Judge, Khanewal for ascertainment of the legal heirs and genuinesses of the compromise vide order dated 10-5-2000. Report of the Learned Sessions Judge vide Letter No. 2120 dated 4-11-2000 in short was that the offence s been compounded by the legal heirs of the ceased without any duress or undue influence even the injured Sarfraz complainant has waived his right of Qisas, however, in se of minors who are also injured out of the occurrence, as mentioned above, his anxiety was that being the minors the case to their extent mere attract expressed prohibition against the waiver and composition on the anology as contained in Clause-B of subsection (1) of section 309, P.P.C. read in conjunction with section 345(2) of the Code of Criminal Procedure, therefore, according to the case of the minors may remain not beyond the ambit of the waiver of the right of Qisas but also out of the purview of composition even with the leave of the Court especially because punishment in their case has been imposed by way of Ta'zir under independent accounts and their parents may not be competent to compound the offence or waive the right of Qisas on their behalf.

5. In order to resolve the controversy the guardians of both the minors namely Reshma and Khizar Abbas were produced and their statement were recorded. Shoukat Ali father of Mst. Reshma mainly stated that he on behalf of his minor daughter has forgiven the appellant in name of Allah Almighty and has no objection if the appeal is allowed and the appellants are acquitted of the charges. Similarly Mst. Khursid Bibi widow of Abdul Qayyum stated that Khizar Abbas injured is her real son and she has forgiven the appellants in the name of Allah Almighty and has no objection if the appeal is allowed and the appellants are acquitted of the charges.

6. On 4-7-2001 the learned Assistant Advocate-General showed his anxiety that amount of Rs. 1,40,000 given as Diyat is not mentioned either in the application or in the statements of the guardians as a consequence of which on the above date Tasawar Ahmad, guardian of the minors named Muhammad Munawar, Muhammad Waqas, Muhammad Waqar (sons) Mst. Uzma Qamar daughter of Muhammad Hussain, vas present in the Court and he stated in the Court' to have received the amount of Rs. 1,40,000 as Dive which has been invested in the National Saving Centre Khanewal.

7. Shaukat Ali and Mst. Khursheed Bibi as being father and mother are natural guardians of the minors while Tasawar Ahmad son of Muhammad Hussain deceased has been appointed as guardian of the minors and in this regard the Guardian Certificate issued by the Court is on the file, therefore to the extent of minor, they are competent to compound the offence. Under section 345(2) Cr.P.C the victim of assault or injured person due assault are competent to compound the offence if the offence is committed under section 324, P.P.C. or in case of other injuries attracting the provisions of sections 337-A(ii) and 337-F (ii) and 337-F(ii) P.P.C but it is not Mentioned as to what is the position if the victims or injured are minors.

8. In our opinion natural guardian of minor either father or mother is fully competent to compound the abovementioned offences on behalf of the minors, also keeping in view the provisions of section 345(4), Cr.P.C.

9. Order dated 2-10-2000 reflects on this fact that the compromise between the parties was allowed but since no statement was made for compromise on behalf of minors, therefore, a necessity arose for re hearing the parties. Even at this stage after examining the record, facts and circumstances of the case we are of the view that the permission for compromise would wind up the litigation in between the parties forever, also when there is complete compromise, therefore, the application under sections 309 and 310, P.P.C. read with section 345(2), Cr.P.C. is accepted and the parties are allowed to effect the compromise.

10. As a consequence of compromise in between the parties the appellants named Mehmood Hassan and Muhammad Akram are acquitted of the charges in this case keeping in view the provisions of section 309, P.P.C. read with section 345(2)(4), Cr.P.C. They shall be released forthwith from the Jail if not required in any other case.

11. Tasawar Ahmad guardian of the minors Muhammad Munawar, Muhammad Waqas, Muhammad Waqar and Mst. Uzma Qamar shall provide the details of the scheme in which an amount of Rs.1,40,000 has been invested, to the Deputy Registrar (Judicial) of this Court within one week positively. Appeal is disposed of accordingly. Death sentence is not confirmed. Murder Reference is answered negative H.B.T./M-964/L Order accordingly.