1987 PLP 252 (SCMR)

ASLAM RIAZ HUSSAIN, J‑‑ Sardar Muhammad, Samir and Shatab Shah, petitioners, were tried and convicted for offence under section 302/307/34, P.P.C. for the murder of six persons and making murderous assault on Mst. Haleema herself, who at that time was only 5/6 years old. The occurrence in this case took place at about 10/11 p.m. on the night between 16‑17/6/1975, in the Haveli of the deceased when Sardar Muhammad accused, alongwith his father‑in‑law Shatab Shah and brother‑in‑law Samir, while armed with Takwas, Gandas and Chhuras, respectively, entered the house of Bhorey Khan (the father of Sardar accused) and killed all the inmates (except Mst. Haleema) including the father of Sardar accused as well as his brothers. These were: (1) Bhorey Khan (grandfather of Mst. Haleema). (2) Muhammad Hanif (the father of Mst. Haleema). (3) Mst.Matiree (the mother of Mst. Haleema). (4) Usman Ghani; Ilyas and Muhammad Yousaf all 3 brothers of Mst. Haleema. The accused also attacked Mst. Haleema (aged 5/6 years at that time, niece of Sardar Khan accused) with a view to kill her but she survived due to sheer good luck.

2. As already mentioned the petitioners were tried and sentenced to death for the above‑noted offences. Their appeal before the High Court failed and their death sentences were confirmed. They have now come up before this Court through the present petition for leave to appeal.

3. Sardar Muhammad's niece (Mst. Haleema) who had miraculously survived the attack on the fateful night has now been produced by the accused party to say that she has compromised the matter with the accused‑convicts out of Court, as she has forgiven them.

4. In view of the expected enforcement of Muslim Shariat Law in the country, this Court, has in some cases, considered a compromise between the parties in murder cases as a 'mitigating circumstance' entitling the accused to the lesser sentence. We have, however, noticed of late that these compromises are made by the persons who are sentenced to death as a measure of 'last resort'. They fight their case on merits all along, from the trial stage onwards and think of a compromise only when they more or less come face to face with the gallows. In other words there is no genuine desire to burry the hatchet and live in peace with the opposite party and the compromise is made only to avoid the noose. There is also a danger that more powerful persons may coerce or pressurise the weaker to 'agree' to s compromise under threat or fear of violence or danger to life. In order to guard against such possibilities this Court would, out of caution certainly make every effort to discover if the so‑called compromise is genuine or whether there is any element of coercion in the alleged compromise and also whether, apart from the possibility of avoiding further blood feud between the parties, the heirs of the deceased will in any way be benefited by, the compromise.

5. Learned counsel for the petitioners has argued that in this case Mst. Haleema the sole survivor of the said incident would stand to gain if the compromise is accepted. He submitted further that case of Shatab Shah accused is better than that of the other two co‑accused and is, therefore, entitled to acquittal. Leave is granted to consider, inter alia, whether in the peculiar circumstances of this case, Mst. Haleema whose entire family was hacked to death by the accused before her eyes is not being coerced into accepting the compromise and also it would be proper at all to accept a 'compromise' whereby the murderers of her entire family will be spared the punishment of death, which they otherwise amply deserve. S.Q. Leave granted.