2015 P Cr (PLP)

YAR MUHAMMAD, J.

This criminal Revision Petition under sections 435/439, Cr.P.C. has been preferred targeting the order dated 6-9-2014 of the learned Additional Sessions Judge, Diamer whereby he has dismissed the application under section 265-K, Cr.P.C. filed by the petitioners/accused for their acquittal of the charges under section 302/34, P.P.C. for which they are facing trial in the said Court vide FIR No.4/2011 registered with police station, Dodishal, District Diamer.

2. Briefly, the prosecution case as divulged in the FIR is that on 11-4-2011 at about 7:50 hours complainant Baboor Khan while appearing along with an application before SHO of the Police Station got registered the criminal case stating that on 10-4-2011 at about 1400 hours he was sleeping in his home that all of a sudden heard reports of firing. He opened the door of the house for knowing the facts and heard noises coming from the house of his daughter Mst. Badan which made him to go there where he found Mst. Badan was soaked with blood. On enquiry it was told that Mst. Badan was murdered by her brother Samreen and cousin Jamshoor (the petitioners) by opening fires with fire-arms. The motive as advanced in the FIR was the blame upon the victim lady for having her illicit relations with one Behram.

3. After bringing the law in motion, the accused sooner or later were arrested by the local police and trial of the case accordingly was started. When charge framed, the accused did not plead guilty rather they opted to face the trial resultantly, the prosecution out of 12 P.Ws. examined 9 P.Ws. and abandoned 2 P.Ws. that in the meantime the petitioners/accused pressed an application under section 265-K, Cr.P.C. into service in the trial Court seeking their acquittal of the charges. The learned trial Court after hearing arguments pro and contra on the application dismissed the same holding that the case is required to be decided after deeply appraisal of the evidence through a detailed judgment and not on the basis of tentative assessment of evidence, hence this Revision Petition.

4. Malik Haq Nawaz, Advocate while appearing for the petitioners argued that there is no iota of evidence on file connecting the petitioners/accused with the offence and assailed that all private and material witnesses have been declared hostile and it was a fit and proper case to give benefit to the accused provided under section 265-K, Cr.P.C. by the Court itself without preferring any application but the learned Court dismissed the application on invalid grounds hence the order of the learned trial Court is required to be set aside by accepting the Revision Petition and prayed for acquittal of the petitioners.

5. Dy. Advocate-General on the other hand opposed the petition and contended that petitioners were released on bail on the basis of compromise effected between the parties which has created sufficient incriminating circumstances upon which conviction could be based even that the L.Rs. of the deceased lady have pardoned to the petitioners as envisaged by section 311, P.P.C. because brutality has been used in the murder of the lady. With the submission he prayed for upholding of the impugned order.

6. I have heard the arguments advanced by the learned counsel of the parties and have gone through material before me besides perusal of the relevant law. In this case Baboor Khan on whose instance the instant case has been registered is the real father of petitioner Samreen is not eye-witness of the occurrence. He has been examined as P.W.3 but in his statement before Court he has disowned the FIR allegedly lodged by him. FIR is the foundation of each criminal case upon which the story of prosecution case rests but when the FIR is being disowned by its lodger then nothing remains there in the case. The prosecution has examined Zaboor and Sajid as eye-witnesses of the occurrence as P.Ws. 5 and 6 but these P.Ws. have also negated themselves to be witnesses of the occurrence. Similarly, the other private P.Ws. have also not supported the prosecution version. The learned trial Court while taking support from the fact that the petitioners were got them released on bail after effecting compromise with the L.Rs. of the deceased lady and have taken the compromise a valid piece of evidence for conviction, was wrong because it is a case without any evidence but even then the learned trial Court ignored this very aspect of the case while disposing of the application under section 265-K, Cr.P.C. Moreover, the compromise effected between the petitioners and the L.Rs. of the deceased was not so vide which the petitioners may have confessed about the guilt or they have paid any compensation to the L.Rs. rather they have been released on bail merely on making a statement by the L.Rs. of the deceased lady saying that they have pardoned to the petitioners. It has time and again been observed by the Superior Courts that the observation made in the orders of bail cannot be used by the parties for conviction or acquittal of the accused rather the law is in the favour that the accused is to be treated as innocent unless it is proved on the basis of best possible evidence that he is connected with the offence alleged to have committed by him and as such, deserve to be convicted to meet the ends of justice. The case in hand if judged keeping in view the evidence brought on record would suggest the Court to acquit the accused even before preferring any such application. Forgiveness or compromise is effective in Tazir cases if the matter relates to Haqooq-ul-Ibad. Therefore, a compromise entered into by the parties, could not be taken as incriminating piece of evidence against the accused. Rather Islam is in favour of AFW (pardon). However, even if the act of compromise in Tazir cases is taken as implied extra Judicial confession, even then, it would not be sufficient to create incriminating circumstances, therefore, the learned trial Court was not justified to read in evidence the simple and plain statements of the L.Rs. recorded before Judicial Magistrate for the release of the petitioners on bail against the accused. Hence the impugned order is not maintainable.

7. I have also gone through the impugned order so as to check the grounds on which basis the learned trial Court has declined the application under section 265-K, Cr.P.C., was the provisions laid under section 311, P.P.C. For facility of reference section 311, P.P.C. is reproduced below:-- "Notwithstanding anything contained in section 309 or section 310, P.P.C. where all the Walis do not waive or compound the right of Qisas and keeping in view the principle of Fisad-fil Arz the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which may extend to 14 years as Tazir. Explanation:

For the purpose of this expression "Fisad-fil Arz" shall include the past conduct, habitual or professional criminal and the brutal manner in which the offence is committed." The mechanism provided under section 311, P.P.C. manifestly suggests that even after waiver by the L.Rs. of the deceased the Court still is empowered to convict the accused if all the Walis have not waived the right of Qisas or the accused comes within the ambit of term "Fisad-Fil Arz". In the explanation of the section "Fisad-Fil Arz" has been defined to include the past conduct of the offender as being previous convict, habitual or professional criminal and the brutal manner in which the offence is committed.

8. Idea of the law givers in enacting section 311, P.P.C. is to inflict punishment on those who, notwithstanding the composition or waiver by wali have to be visited with some penalty, not only for their propensity towards criminal acts but its mode of barbaric execution. The inclusion of the term "Fisad-Fil Arz" has significant meaning and it is only those persons who fall within its ambit who can be convicted and sentenced under this section. It will be very relevant to mention that while taking into consideration the object of enacting section 311, P.P.C., the Courts must also to keep in consideration the provisions of sections 309 and 310, P.P.C., otherwise these sections would become redundant and superfluous in its application. Whether the in hand offence allegedly committed by the petitioners was constituting something "Fisad-Fil Arz", nothing has also been written by the I.O. in this regard in the challan of the case. The record is further silent about the petitioners if they were previously convicted or their being habitual and professional criminals.

9. For the reasons what have been discussed above, this petition is accepted consequently, the petitioners/accused are acquitted of the charges vide FIR No. 4/2011 of Police Station Dodishal, District Diamer. File. HBT/2/GB Petition accepted.