2005 PLP 309 (YLR)

Munawar Khan for Petitioner. Ubaidullah Anwar, A.A.G. for Respondent. Date of hearing: 29th October, 2004. Petitioner was charged vide F.I. R. No.295, dated 5-10-1981 under sections 367/304, P.P.C. at Police Station, Tal. He was tried by the learned Sessions Judge, Hangu and was convicted vide his judgment/order, dated 9-2-2004. He filed Criminal Appeal No.95 of 2004 before this Court, but the same was dismissed vide judgment/order, dated 14-4-2004. Now the petitioner has filed Criminal Miscellaneous No.213/04 for acquittal of the petitioner on the basis of compromise.

2. Mr. Munawar Khan, Advocate the learned counsel representing the petitioner argued that under section 338-E(2), P.P.C. the learned trial Court has the jurisdiction to waive or compound the offence even after decision of the appeal by this Court and since the parties have effected compromise, therefore, the learned trial Court was approached for acquittal of petitioner on the basis of compromise, but he was verbally directed to approach this Court, as appeal has been decided by this Court.

3. I have heard Mr. Munawar Khan, Advocate for the petitioner, Mr. Ubaidullah Anwar, Additional Advocate General for the State and perused the record.

4. As per subsection (2) of sec tion 338-E, P.P.C. all the questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after passing of any sentence shall be determined by the trial Court. The sentence of Qisas or other sentence may be waived off or compounded by the appellate Court during the pendency of appeal. Since this Court vide its judgment/order, dated 14-4-2004 has already decided the appeal, therefore question of waiver cannot, be decided by this Court under the above referred section of Law. The said proposition was made very clear by august Supreme. Court of Pakistan in Nazak Hussain v. The State PLD 1996 SC 178 while giving guideline for subordinate Courts and Citizens it was held:-- (iii) Under section 238-E(i), P.P.C. subject to the provisions or Chapter XLV and section 345 of the Code of Criminal Procedure all offences under Chapter XLV, P.P.C. relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. shall mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating, to the waiver or compounding of an offence or awarding of an offence or awarding of punishment under section 310, P.P.C. and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused." Keeping in view the above cited dictum of August Supreme Court of Pakistan this Criminal Miscellaneous No.213 of 2004 is returned to the petitioner for moving the same before the learned trial Court. H.B.T./265/P Order accordingly.