1999 PLP 2047 (SCMR)

RAJA AFRASIAB KHAN, J.

On 10- 10- 1990, a case under section 302/307/148/149, P.P.C. was registered on the statement of Zalib Gut against, Moeen Shah, Aqal Shah, Salamir (acquitted respondents), Akhtar Badshah (absconding accused) and Almar Shah, the convict/appellant for the murder of Qamar Gut and Zalib Gut. The trial Judge, vide his judgment dated 30-11-1993 convicted Almar Shah, the appellant under section 302/149, P.P.C. and sentenced him to death plus fine of Rs.20,000 or in default to undergo R.I. for two years. On recovery, half of the fine was ordered to be paid to the legal heirs of the deceased as compensation. He was also convicted under section 148, P. P.C. and sentenced to R.I. for two years plus fine of Rs. 1,000 or in default to undergo R.I. for two months. Vide the same judgment, Moeen Shah, Aqal Shah and Salamir were convicted under section 302/149, P.P.C. and sentenced to imprisonment for life plus fine of Rs. 10,000 each or in default to undergo R.I. for six months each. Likewise, they were convicted under section 307/149, P.P.C. and sentenced to three years R.I. each with fine of Rs.1,000 each or in default to undergo R.I. for two months each. They were convicted under section 148, P.P.C. and sentenced to two years R.I. and fine of Rs.2,000 each or in default to undergo R.I. for two months each. The sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was given to them. The fifth accused, namely Akhtar Badshah alias Akhtar Muhammad was declared proclaimed offender. His perpetual warrants of arrest were ordered to be issued. On appeal and revision, the Peshawar High Court vide its impugned judgment dated 11-1-1995 upheld the conviction and sentence of the appellant while acquitted the respondents by giving them the benefit of doubt. The criminal revision filed by the complainant for enhancement of sentences of the respondents was dismissed. Against this judgment these appeals have arisen. During the pendency of the aforesaid matters, a joint application has been filed by the learned Advocates-on-Record for the appellants stating that the parties have entered into a compromise. On 4th of March, 1999, a learned Judge of this Court passed the following order:-- "These are two appeals arising out of the same judgment. There are two deceased in this case, namely Qamar Gut and Zalib Gut sons of Badshah Gut. Their respective legal heirs are as follows: He is survived by Mina Gut, brother; Zaman Gul, brother; and Mst Inayat khela, widow; He is survived by Mina Gut, brother, Zaman Gut, brother; Mst Badshah Zara, widow and Mst. Bibi Ruqia, daughter. All the legal heirs are present before me and they are identified by Mr. Abdul Qadir Khattak, Advocate Supreme Court. They have also filed their respective affidavits. Mst. Ruqia daughter of Zalib Gut is stated of about 11/12 years of age. The legal heirs of the two deceased except Mst. Ruqia are adult. The legal heirs state that they have entered into compromise with the appellants voluntarily. They also state that they have forgiven the accused persons in the name of Allah and they do not claim any 'diyat' money. Since one of the legal heirs is minor, the compromise cannot be considered until the appellants deposit share of the minor in Court as 'diyat' money. The appellants are accordingly directed to deposit the share of minor Mst. Ruqia With the trial Court. In the meantime the compromise may be remitted to the Sessions Judge, Kohat, for an enquiry whether the compromise war, entered into voluntarily by the parties, and that all the legal heirs of the deceased in the cases have joined this compromise. After receipt of the report of learned Sessions Judge, the cases may be fixed in the Court for further orders. " In compliance with the above order, Judge Special Court/Additional Sessions Judge, Bannu conducted the enquiry and on 17-3-1999 reported:-- From the statements of legal heirs of the deceased, Qamar Gul and Zalib Gul as well as elders of the locality, this Court is satisfied that a genuine compromise has been effected by all the major legal heirs of the deceased with the following detail:-- L.Rs. of Qamar Gul, deceased He is survived by Mina Gul (brother), Zaman Gul (brother) and Mst. Inayat Khela (widow). L.Rs. of Zalib Gul, deceased: He is survived by Mina Gul (brother), Zaman Gul (brother), Mst. Badshah Zara (widow) and Mst. Bibi Ruqia (daughter). Moreover, the accused party today, deposited the cash amount of Rs. 1,00,000 (rupees one lac) as share in the Diyat amount in the name of Mst. Bibi Ruqia, minor daughter of deceased Zalib Gul and in this respect the original receipt is attached for ready reference while one copy is given to her mother and one copy is placed on record of this Court. This report alongwith all the original statements etc. be sent to the learned District and Sessions Judge, Kohat for onward submission to the August Supreme Court of Pakistan."

2. Learned counsel for the parties are present before us. They have reiterated their stand that the legal heirs of the deceased except Mst. Bibi Ruqia, who is minor, have entered into a voluntary compromise with the appellant, Almar Shah by pardoning him in the name of Allah Almighty. A sum of Rs. 1,00,000 (rupees one lac) has been deposited by the appellant in the name of Mst. Bibi Ruqia, the minor daughter of Zalib Gul, deceased. It is the legal obligation and also the duty of the Courts to preserve, protect and defend the vital interest of the minors. Keeping this principle in view, the above amount of Diyat money shall be invested in the Scheme called "Defence Saving Certificate" for the benefit of the minor. On coming of age, Mst. Bibi Ruqia, the minor shall be entitled to receive the aforesaid Certificates which shall, in the meanwhile, be kept in the safe custody of the Senior Civil Judge, Kohat. In view of the above, we accept the compromise and in the result, the conviction and sentence of the appellant is set aside and he is acquitted of the charge provided, of course, he is not needed in some other case. Resultantly, Criminal Appeal No. 148 of 1995 is allowed whereas Criminal Appeal No. 1482 of 1995 is dismissed. N.H.Q/A-173/S Compromise accepted