2011 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, C.J.

This judgment will dispose of Criminal Appeal No. 871 of 2005 filed by Falak Sher, Amir Mustafa, Shehzad Ashraf and Amir Shahzad appellants, who were convicted and sentenced by learned Additional Sessions Judge, Faisalabad vide impugned judgment dated 16-5-2005 as under:-- Under section 393/34, P.P.C. Seven years' R.I. each with a tine of Rs. 20,000 each. Under section 394/34, P.P.C. Imprisonment for life each with a fine of Rs. 30,000 each. Under section 324/34, P.P.C. Ten years' R.I. each with a fine of Rs. 20,000 each. Under section 337 F-v, P.P.C. Five years' R.I. each along with Daman of Rs. 5000 each. Under section 337 F-iii, P.P.C. Three years' R.I. each along with Daman of Rs. 5000 each. Under section 337 A-i, P.P.C. Two years' RI each along with Daman of Rs. 5000 each. For causing injury to Benish Nawaz falling within the ambit of Jurh Ghayr Jaifah Mutalahimah. Three years' imprisonment each as Tazir along with Daman of Rs.5,000 each. Under section 337 A-i P.P.C. Two years' and three years imprisonment each as Tazir along with Daman of Rs.5,000 for each of the offence each. Under section 302(b)/34, P.P.C. Death as Tazeer along with compensation of Rs.2,50,000 each and in default thereof six months SI each. All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C. The learned trial Court has also sent Murder Reference, which has been numbered as M.R.No.645 of 2005 seeking confirmation or otherwise of death sentence awarded to the appellants and that shall also be disposed of through this judgment.

2. During the pendency of this appeal, an application under section 345, Cr.P.C. bearing Criminal Miscellaneous No. 2821-M of 2010 had been filed on behalf of the appellants seeking their acquittal on the basis of compromise arrived at between the parties.

3. Report with regard to the genuineness of the compromise was requisitioned from the learned Sessions Judge, Faisalabad, which has been received. A perusal thereof reveals that Mst. Saba Nawaz deceased was un-married at the time of occurrence and, was survived by Muhammad Nawaz (father) and. Mst. Kausar Parveen (mother) and there is no other legal heir of the deceased except mentioned above. Report further reveals that Beenish Nawaz, Sonia Nawaz and Adeel Nawaz were injured during the occurrence and out of the said injured, Sonia Nawaz and Adeel Nawaz injured are minors. According to the said report, statements of C.W.3 Muhammad Nawaz (father), C.W.4 Mst. Kausar Parveen (mother) and injured C.W.5 Mst. Beenish Nawaz were recorded. The parents of the deceased made statements to the effect that they had forgiven the convicts/appellants in the name of Almighty Allah without receiving any "badal-i-sulah", waived their right of "Qisas and Diyat" and have no objection if the convicts/appellants are acquitted of the. charge on the basis of compromise. C.W.5 Mst. Beenish Nawaz injured also stated in her statement that she had forgiven all the four convicts/appellants in the name of Almighty Allah and has waived her right of Daman imposed by the .learned trial Court in the sum of Rs.40,000 to all the convicts/appellants. So far as, minor legal heirs of the deceased are concerned, Muhammad Nawaz C.W.3 as Guardian of Mst. Sonia Nawaz and Adeel Nawaz minors injured also pardoned the convicts/appellants in the name of Almighty Allah and received the original Defence Saving Certificates in the sum of Rs.40,000 each. Report further reveals that said Defence Saving Certificates of minor legal heirs have been handed over to their father Muhammad Nawaz and the minors will be entitled to encash the said Defence Saving Certificates on attaining the age of majority and the Incharge National Saving Centre-I Faisalabad has been intimated in this regard. In the end of the report, the learned Sessions Judge, Narowal has shown his satisfaction with regard, to genuineness of the compromise. Learned counsel for the appellants has submitted that all the offences except sections 393 and 394, P.P.C. are compoundable, hence the compromise may be blessed with acceptance whereas they would not press the appeal to the extent of conviction of the appellants recorded under sections 393 and 394, P.P.C. and they would be satisfied if their sentences shall be reduced to the period already undergone by them in Jail.

4. Learned D.D.P.P. and learned counsel for the complainant after going through the report submitted by learned Sessions Judge, Faisalabad submit that they have no objection if the permission to compound the offences, which are compoundable is granted and as far as offences, which are not compoundable, they have maintained that the matter of reduction of sentence is the pure discretion of this court and they have nothing to add in this regard.

5. After hearing learned counsel for the parties and keeping in view the statements of learned counsel for the complainant and learned D.D.P.P, we have no hesitation in granting permission to compound the offences, which are compoundable. We have considered the submissions made by learned counsel for the appellants for reduction of sentence in the offences, which are not compoundable. We have gone through the provisions of sections 393 and 394, P.P.C. Section 393, P.P.C. provides "Whoever attempts to commit robbery, shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine" whereas according to section 394, P.P.C. "if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which (shall not be less than four years nor more than ten years), and shall also be liable to fine. Hence we find that the appellants, who are in Jail since their conviction, which was recorded on 16-5-2005 must have served out the minimum punishment provided under sections 393 and 394, P.P.C. as benefit of section 382-B, P.P.C. was also extended to them. Even otherwise, now the parties have entered into compromise to burry their hatchets and want to live a peaceful life in future, we feel that the submissions made by learned counsel for the appellants are justifiable therefore, taking a lenient view the sentences which the appellants have already undergone would be sufficient to meet the ends of justice, thus, while maintaining the conviction of the appellants under sections 393 and 394, P.P.C., their sentences are reduced to the period already undergone by them. However, since the rest of the offences are compoundable so while accepting the compromise the convicts/appellants are acquitted of those charges on the basis of compromise. The death sentence is not confirmed and Murder Reference is replied in the negative. The appellants are in Jail and shall be released forthwith if not required to be detained in any other case. With the above modification in the conviction and sentence, this appeal is accordingly disposed of. This also disposes of Criminal Miscellaneous No.2821-M of 2010. H.B.T./F-4/L Order accordingly.