2012 PLP 606 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This appeal by leave of the Court, is directed against the judgment dated 26-5-2009, passed by Lahore High Court, Lahore in Criminal Appeal No.2243 of 2003 and Murder Reference No.894 of 2003.

2. The appellant has been found guilty for the offence under section 302(b), P.P.C. for the murder of Mst. Kausar Bibi, aged about 25/26 years and sentenced to death by the learned Additional Sessions Judge, Depalpur, District Okara vide judgment dated 13-12-2003. In appeal the learned High Court confirmed the death sentence of the appellant vide judgment dated 26-5-2009, which judgment was assailed by the appellant before this Court in Civil Petition No.530 of 2009, in which leave to appeal was granted by this Court on 6-1-2010. Hence this appeal.

3. It is to be noted that along with the appellant, four other persons namely Shabbir, Haji Sukhera (Aun Muhammad), Muhammad Ashraf and Amanat Ali also faced trial; out of whom Shabbir, Muhammad Ashraf and Amanat Ali were acquitted by the trial Court whereas Haji Sukhera (Aun Muhammad) was acquitted by the learned High Court by means of impugned judgment.

4. It so happen that pending decision of instant appeal, the parties have compromised the matter and a request has been made to this Court through Criminal Miscellaneous Application No.429 of 2010 to accord permission to compound the offence.

5. Vide order dated 13-1-2011, report was called from the Sessions Judge, Okara to confirm genuineness or otherwise of the compromise, which order was complied with by him vide report dated 2-2-2011; however, the same was returned to him as an error occurred in respect of recording the name of the husband of the deceased lady i.e. Mst. Kausar Bibi; in the compromise application it was shown as 'Jahangir Ahmed' whereas in the post-mortem report, charge sheet and statement of witness (P.W.4), it was mentioned as 'Nazir Ahmed'; the learned Sessions Judge vide order of this Court dated 23-5-2011 was directed to reconfirm the same and remove the above noted error. Accordingly, he has submitted a second report dated 8-6-2011, confirming that 'Muhammad Jehangir' was the husband of Mst. Kausar Bibi (deceased) and due to inadvertence, the name of 'Nazir Ahmed' has been mentioned in the proceedings of the Trial Court. He has based his such conclusion on oral as well as documentary evidence i.e. Nikkah Nama, etc.

6. Learned counsel appearing for the appellant states that as the matter has been settled in the name of Allah Almighty and the legal heirs of the deceased i.e. father, mother as well as husband, have forgiven the accused/appellant, therefore, permission be accorded to compound the offence.

7. Mr. M. Irfan Malik, learned Additional Prosecutor-General, however, has pointed out that prior to incident, the deceased lady was abducted by the accused/appellant and she came back to the house of her parents 3/4 days prior to occurrence, after escaping from the clutches of the accused party; he further states that there is another F.I.R. registered against the accused, therefore, in such like situation, when an accused is involved in more than one crime, he deserves no concession and is liable to be dealt with strictly under the relevant provision of law i.e. section 311, P.P.C.; according to him, keeping in view this aspect of the matter, this Court while accepting the compromise, may award him adequate sentence.

8. We have heard the learned counsel for the parties and have also gone through the contents of the compromise. As at present no sufficient evidence is available on record to conclude that the accused/appellant is habitual offender, coupled with the fact that although another F.I.R., referred to by the learned Additional P.-G., has been registered against him but it, itself is not sufficient to prove the appellant to be so, unless it is proved/established that he has been convicted in the said F.I.R. and the said conviction has been finally maintained by the superior Courts. Therefore, we have decided to dispose of this case in terms of compromise.

9. Since the parties have compromised the matter and the learned Sessions Judge, Okara vide his reports dated 2-2-2011 and 8-6-2011 has proved the genuineness of the compromise, enabling the parties to have good relations in future and since right of Qisas and Diyat has also been exercised by the complainant party wherein they have forgiven the accused/appellant in the name of Allah Almighty, we accord permission to the accused/appellant to compound the offence in terms of section 345(3), Cr.P.C. Resultantly, the conviction/sentence recorded against the appellant Jafar @ Jafari by the learned High i.e. under section 302(b), P.P.C. are set aside. He is directed to be released forthwith, if not required in any other case. Criminal Miscellaneous Application No.429 of 2010 is allowed in above terms and Criminal Appeal No.7 of 2010 stands disposed of accordingly. M.W.A./J-3/SC Appeal allowed.