2003 SCMR 1067 (PLP)

ABDUL HAMEED DOGAR, J.

In the above mentioned jail petition petitioner Riaz Ahmad assailed the-judgment, dated 18-7-2001 of a learned Division Bench of Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the sentence of death awarded against him by the trial Court was confirmed and his Criminal Appeal No.37 of 1999 was dismissed.

2. During the pendency of the instant petition the petitioner preferred Criminal Miscellaneous Application No.33 of 2003 wherein he has stated that Mst. Anwar Mai widow and the children of deceased Allah Bukhsh have forgiven him in the name of Almighty Allah without receiving any amount towards 'Badle Sulh'. She on her behalf and on behalf of her minor children, namely. Taqueer Bibi aged 19 years, Shaheen Bibi aged 17 years and Uzra Bibi aged 13 years, being the legal guardian appointed by the Senior Civil Judge/Guardian Judge, Rahim Yar Khan, on 23-12-1998; has sworn affidavit to the above effect. According to the applicant, only mother of deceased Mst. Karim Khatoon has not compounded the offence, thus he is ready to pay her share of Diyat amount. According to the applicant, the compromise between the parties is legal and would foreclose any further episode and faster goodwill between them.

3. In order to verify the contents of compromise application, a report was called for from learned Sessions Judge, Rahim Yar Khan, as to, its being genuine and voluntary, who after conducting a detailed inquiry, submitted his report, dated 23-1-2003.

4. The learned Sessions Judge, Rahim Yar Khan, recorded the statements of Mst. Karim Khatoon and Mst. Anwar Mai, the mother and widow of deceased Allah Bukhsh respectively. Mst. Karim Khatoon in her statement stated that she did not want to waive her right of Qisas against the convict and wanted to prosecute him and also stated that his two minor daughters, namely, Shaheen Bibi, Mst. Uzra Bibi and son Faiz Rasool were residing with her. Mst. Shaheen Bibi the daughter of deceased also in her statement did not waive the right of Qisas against the convict, her real maternal uncle.

5. Whereas Mst. Anwar Mai the widow waived the right of Qisas against applicant Riaz Ahmed, her brother, without fear and duress and wanted to compound the offence with him and also deposed that Mst. Tauqeer Bibi her daughter and her minor son Muhammad Kamran were living with her and has been appointed as their guardian. Out of the children, only Mst. Tauqeer Bibi aged 19 years in her statement that the applicant is her real maternal uncle and she has waived her right of Qisas against him for the sake of Almighty Allah and did not want to prosecute him.

6. Learned counsel for the applicant when confronted with the report contended that in the above circumstances of the case, it being a partial compromise the sentence of death could not be awarded. According to him in view of the provisions of section 307, P.P.C., the punishment of death as Qisas could not be awarded in this case as Mst. Anwar Mai the widow and Mst. Tauqeer only major daughter of deceased, the Walis of deceased have voluntarily and without duress waived the right of Qisas against him. In such circumstance, the remaining Walis/legal heirs would be entitled to the payment of Diyat amount only.

7. We are not persuaded to agree with the above assertions of the petitioner's counsel, mainly for the reasons, that the above-referred provisions of law would be applicable only in such cases where an offender is punished to death as Qisas under section 302(a), P.P.C. In the instant case, the applicant has been awarded sentence of death under 'T'azir'' and not under 'Qisas', as such, legal heirs cannot wave or accept 'Badle Sulh' but can compound the offence with the accused with permission of the Court concerned.

8. It was vide Criminal Law (Second Amendment) Ordinance, 1990, an amendment was brought in Chapter XVI of Pakistan Penal Code (Offences affecting the human body) in order to bring them in conformity with Injunctions of Islam as laid down in the Holy Quran and Sunnah and sections 299 to 308-H were substituted therein. As regards the punishment an amendment was also made in section 53, P.P.C. whereby Islamic punishment were substituted. In order to make the above offence compoundable a corresponding amendment was brought in section 345, Cr.P.C. and all the above mentioned offences affecting human body were made compoundable.

9. In case of compromise during the trial of the case, an application to compound the offence is to be preferred under subsection (2) of section 345, Cr.P.C. by the legal heirs of the victim, whereas when the accused has been convicted and the appeal is pending, then according to subsection (5), no composition of the offence shall be allowed without leave of the Court before which the appeal is pending. In case the composition of the offence is allowed, it shall have the effect of acquittal as contemplated under its subsection (6).

10. Since the applicant has been convicted under 'Ta'zir and his conviction has been upheld by the appellant Court which is challenged it the instant petition, no composition for the offence shall be allowed unless all the legal heirs of deceased have entered into the compromise with him.

11. As stated above, the legal heirs of the deceased, Mst. Karin, Khatoon mother and Mst. Shaheen daughter of deceased had no compounded the matter with the applicant as such permission to compound the offence is declined and the application is dismissed. N.H.Q./R-72/S??????????????????????????????????????????????????????????????????????????????????? Petition dismisses.