2002 PLP 1308 (SCMR)

IFTIKHAR MUHAMAMD CHAUDHRY, J.

This petition for leave to appeal has been fild against the 'judgment, dated 17th October, 2000 passed by Lahore High Court, Lahore whereby death sentence awarded to petitioner under section 302, P.P.C. has been confirmed. 2. precisely stating facts of the case are that petitioner alongwith two other accused faced trial under section 302/34, P.P.C. for the murder of Najeebullah. It may be noted that motive, disclosed in the F.I.R., was that about 7-1/2 months ago petitioner/convict Muhammad Younas abducted Mst. Robina Kausar, daughter of Najeebullah and sister of complainant Saleem Akhtar. As such her deceased father got registered a case against petitioner due to which he.was arrested and was sent to jail. After his release op bail, he again tried to abduct Mst. Robina Kausar forcibly but did not succeed and for this occurrence as well a second case was got registered against him. Statedly, after one day of this occurrence, during the intervening night of 3rd and 4th of August, 1992 petitioner/convict Muhammad Younas caused a fire-arm injury to complainant's mother, therefore, in respect of this occurrence again a case was registered against petitioner Muhammad Younas at the instance of complainant's father. Because, these cases were being persuaded by the deceased, therefore, petitioner with the assistance of his brother Ijaz. compelled the deceased Najeebullah to effect compromise with them but the deceased did not agree, therefore, petitioner/convict Muhammad Younas and two others with the conspiracy of Ijaz committed murder of Najeebulah. On completion of the trial, petitioner was found guilty for the commission of the offence, as such learned trial Court vide judgment, dated 12th May, 1994, sentenced him to death and also directed to pay fine of Rs.25,000 or to undergo R.I. for the period of 6 months, in case death sentence is not confirmed. Trial Court also directed him to pay compensation of Rs.76,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. He challenged conviction/sentence awarded to him by filing appeal before learned High Court. Simultaneously murder reference was also forwarded by the trial Court for confirmation or otherwise of death sentence awarded to the petitioner/convict. A learner Division Bench of Lahore High Court. Lahore dismissed the appeal filed by petitioner and confirmed his death sentence by means of impugned judgment. As such instant petition has been filed.

3. During the pendency of petition, parties compromised the matter outside the Court. In order to verify whether the legal heirs of Najeebulla have compromised the matter willingly, a report was called for from concerned Sessions Judge, who has testified that the parties have compromised the matter outside the Court,

4. On the last date, of hearing, notices were ordered to be issued to legal heirs of Najeebullah to attend the Court personally and confirm whether they have effected the compromise or not. In response to the notices, all the legal heirs of Najeebullah namely Mst. Nazeeran, Saleem Akhtar, Naeem Akhtar, Khalida Begum, Perveen Akhtar, Nasreen Akhtar, Naheeda Kasusar, are in attendance, Muhammad Ishaq, Lumberdar of village 163-RB is also present in Court and he identified to all of them.

5. Learned counsel for the petitioner stated that all the legal heirs of deceased Najeebullah have entered into a compromise and they have waived their right of 'Diyat', therefore, offence under section 302(b), P.P.C. be allowed to be compounded and death sentence awarded to petitioner be set aside and consequently he be set at liberty.

6. Learned Advocate-General (Punjab) appearing on behalf of State. argued that he has no objection if the compromise is accepted but Court may take into consideration the conduct of accused anird 'which he has committed the murder of Najeebullah. He narrated the whole-facts of the case in detail and submitted that in such-like situation, when the Court arrives at conclusion that the offence has been committed in a shocking manner, then the jurisdiction is required to be exercised under section 311, P.P.C.

7. After hearing learned counsel for the petitioner as well as learned Advocate-General (Punjab), we are inclined to accept the compromise executed .between the legal heirs of the deceased and petitioner/convict Muhammad Younas. However, keeping in view the facts and circumstances; of the case and manner in which the offence has been committed by him, we, in exercise of our jurisdiction under section 311, P.P.C. direct punishment of 14 years' R.I. to the petitioner and also enhance compensation from Rs.70.000 to Rs.2,50,000 under section 544-A, Cr.P.C. which shall be paid A to the. legal heirs of the deceased: The amount of compensation shall be recovered from the petitioner/convict before his release failing which prescribed procedure shall be followed for effecting recovery of this amount. Resultantly, conviction awarded to the petitioner by the trial Court vide judgment, dated 12th May, 1994 and confirmed by the learned High Court vide judgment, dated 17th October, 2000 is modified in the terms specified hereinabove. The accused, however, shall be entitled for the benefit of section 382-B, Cr.P.C. With the above modification in the sentence of the petitioner; petition is converted into appeal and disposed of accordingly. Q.M.H./M.A.K./M-413/S ????? Order accordingly.